Waiver and Consent No. 2 to Credit Agreement, dated as of May 10, 2019, to the Credit Agreement dated as of July 6, 2015, by and among The Kraft Heinz Company, Kraft Heinz Foods Company, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe Limited, as London agent for the Lenders
Exhibit 10.1
WAIVER AND CONSENT NO. 2 dated as of May 10, 2019 (this “Waiver”), among THE KRAFT HEINZ COMPANY, a Delaware corporation (“Kraft Heinz”), KRAFT HEINZ FOODS COMPANY, a Pennsylvania limited liability company (the “Parent Borrower”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the “Administrative Agent”).
Reference is made to (i) the Credit Agreement dated as of July 6, 2015 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), among Kraft Heinz, the Parent Borrower, the Lenders party thereto, the Administrative Agent and J.P. Morgan Europe Limited, as London agent, and (ii) the Waiver and Consent No. 1 dated as of March 22, 2019 (“Waiver No. 1”) among Kraft Heinz, the Parent Borrower, the Lenders party thereto and the Administrative Agent. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Kraft Heinz and the Parent Borrower have requested, and the Administrative Agent and the Lenders party hereto (which constitute the Required Lenders) agree, in accordance with Section 9.01 of the Credit Agreement, to grant a one-time temporary waiver of compliance with (i) Section 5.01(c)(ii) with respect to the consolidated financial statements of Kraft Heinz and its Subsidiaries for the fiscal year ended December 29, 2018 and (ii) Section 5.01(c)(i) with respect to the unaudited interim condensed consolidated balance sheet of Kraft Heinz and its Subsidiaries as of the end of the quarter ended March 30, 2019 and unaudited interim condensed consolidated statements of earnings and cash flows of Kraft Heinz and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter.
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Waiver and Consent. Subject to the satisfaction of the conditions precedent set forth in Section 3 hereof:
(a) The Lenders party hereto hereby grant (i) a one-time temporary waiver, until June 28, 2019 (the “2018 Annual Financial Statements Extension Deadline”), of compliance by Kraft Heinz and the Parent Borrower with the requirement to furnish to the Lenders a copy of the consolidated financial statements of Kraft Heinz and its Subsidiaries for the fiscal year ended December 29, 2018, audited by PricewaterhouseCoopers LLP (or other independent auditors which, as of the date of this Agreement, are one of the “big four” accounting firms) (the “2018 Annual Financial Statements”) as required by Section 5.01(c)(ii) of the Credit Agreement and (ii) a one-time temporary waiver, until July 31, 2019 (the “2019 Q1 Financial Statements Extension Deadline”), of the unaudited interim condensed consolidated balance sheet of Kraft Heinz and its Subsidiaries as of the end of the quarter ended March 30, 2019 and unaudited interim condensed consolidated statements of earnings and cash flows of Kraft Heinz and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (the “2019 Q1 Financial Statements”), it being understood and agreed that Sections 5.01(c)(i) and 5.01(c)(ii) of the Credit Agreement shall be deemed to require Kraft Heinz and the Parent Borrower to furnish to the Lenders the 2018 Annual Financial Statements and the 2019 Q1 Financial Statements, as applicable, on or prior to the 2018 Annual Financial Statements Extension Deadline or the 2019 Q1 Financial Statements Extension Deadline, as applicable.
(b) During the period from and after the Waiver Effective Date (as defined below) to and including (i) the 2018 Annual Financial Statements Extension Deadline or (ii) in the event Kraft Heinz and the Parent Borrower furnish to the Lenders the 2018 Annual Financial Statements on or prior to the 2018 Annual Financial Statements Extension Deadline, the 2019 Q1 Financial Statements Extension Deadline, the condition precedent to each Pro Rata Borrowing set forth in Section 3.03(b) of the Credit Agreement shall be deemed to be satisfied if such condition precedent would otherwise be satisfied but for the failure of Kraft Heinz and the Parent Borrower to furnish the 2018 Annual Financial Statements and/or the 2019 Q1 Financial Statements, as applicable, to the Lenders within the applicable periods set forth in Sections 5.01(c)(i) and 5.01(c)(ii) of the Credit Agreement.
Section 2. Representations and Warranties. Kraft Heinz and the Parent Borrower represents and warrants that as of the date hereof and the Waiver Effective Date:
(a) After giving effect to this Waiver, the representations and warranties of Kraft Heinz and the Parent Borrower contained in Article IV of the Credit Agreement and in the Holdco Guaranty Agreement are true and correct in all material respects; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects.
(b) After giving effect to this Waiver, no Default or Event of Default has occurred and is continuing.
Section 3. Conditions to Effectiveness.
This Waiver shall become effective on the first date (the “Waiver Effective Date”) on which the following conditions have been satisfied:
(a) The Administrative Agent shall have received executed counterparts of this Waiver by (i) Kraft Heinz, (ii) the Parent Borrower, (iii) the Administrative Agent and (iv) the Required Lenders.
(b) The Administrative Agent shall have received a certificate, dated the Waiver Effective Date and signed by a duly authorized officer of Kraft Heinz, confirming the accuracy of the representations and warranties contained in Section 2 hereof.
The Administrative Agent shall notify Kraft Heinz, the Parent Borrower and the Lenders of the Waiver Effective Date and such notice shall be conclusive and binding.
Section 4. Fees and Expenses. Kraft Heinz and the Parent Borrower agree to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses incurred by it in connection with this Waiver, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative Agent.
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Section 5. Counterparts.
This Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Waiver by facsimile transmission or other electronic communication (i.e., TIF or PDF or other similar communication) shall be effective as delivery of a manually executed counterpart of this Waiver.
Section 6. Governing Law; Waiver of Right to Trial by Jury, Etc.
THIS WAIVER AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION ARISING UNDER OR RELATED TO THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CHOICE OF LAW DOCTRINES. The provisions of Sections 9.03, 9.04(a), 9.04(c), 9.06, 9.11 and 9.16 of the Credit Agreement are hereby incorporated by reference as if set forth in full herein, mutatis mutandis.
Section 7. Headings.
The headings of this Waiver are for purposes of reference only and shall not be deemed to limit, amplify or modify the terms of this Waiver, nor affect the meaning hereof.
Section 8. Effect of Waiver; References to the Credit Agreement.
Except as expressly set forth herein, this Waiver shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Agent, any Lender or any Issuing Bank under the Credit Agreement, Waiver No. 1, the Holdco Guaranty Agreement or any agreement or document relating thereto, and except as expressly provided in this Waiver, shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Holdco Guaranty Agreement or any such other agreement or document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. On and after the Waiver Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as waived and consented to hereby. Nothing herein shall entitle Kraft Heinz or the Parent Borrower to a consent to, or a waiver, extension, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Holdco Guaranty Agreement or any agreement or document relating thereto in any similar or different circumstances.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed as of the date first above written.
| THE KRAFT HEINZ COMPANY, | ||||
| By: | /s/ Yang Xu | |||
| Name: | Yang Xu | |||
| Title: | Treasurer | |||
| KRAFT HEINZ FOODS COMPANY, | ||||
| By: | /s/ Ciao Xing | |||
| Name: | Ciao Xing | |||
| Title: | Assistant Treasurer | |||
[KRAFT HEINZ – WAIVER AND CONSENT NO. 2 TO CREDIT AGREEMENT]
| JPMORGAN CHASE BANK N.A., as Administrative Agent and a Lender | ||||
| By: | /s/ Tony Yung | |||
| Name: | Tony Yung | |||
| Title: | Executive Director | |||
[KRAFT HEINZ – WAIVER AND CONSENT NO. 2 TO CREDIT AGREEMENT]
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
Name of Lender: BANCO SANTANDER, S.A., NEW YORK BRANCH
| by | /s/ /s/ Rita Walz-Cuccioli | |||
| Name: | Rita Walz-Cuccioli | |||
| Title: | Executive Director Bank Santander, S.A. New York Branch | |||
For any Lender requiring a second signature line:
| by | /s/ /s/ Terence Corcoran | |||
| Name: | Terence Corcoran | |||
| Title: | Executive Director Banco Santander, S.A, New York Branch | |||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
Name of Lender: Bank of America, N.A.
| by | /s/ Casey Cosgrove | |||
| Name: | Casey Cosgrove | |||
| Title: | Director | |||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: BARCLAYS BANK PLC | ||||||
| Lender: BARCLAYS BANK PLC | ||||||
| by | /s/ Jake Lam | |||||
| Name: Jake Lam | ||||||
| Title: Assistant Vice President | ||||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: | ||||||
| Lender: BNP PARIBAS | ||||||
| by | /s/ Michael Pearce | |||||
| Name: | Michael Pearce | |||||
| Title: | Managing Director | |||||
| For any Lender requiring a second signature line: | ||||||
| by | /s/ Emma Petersen | |||||
| Name: | Emma Petersen | |||||
| Title: | Director | |||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: Citibank, N.A. | ||||||
| Lender: | ||||||
| by | /s/ Carolyn Kee | |||||
| Name: | Carolyn Kee | |||||
| Title: | Vice President | |||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: | ||||
| Lender: Cooperatieve Rabobank U.A. New York Branch | ||||
| by | /s/ Olivia Leong | |||
| Name: Olivia Leong | ||||
| Title: Executive Director | ||||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Maria Fridman | |||
| Name: Maria Fridman | ||||
| Title: Executive Director | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: Credit Agricole Corporate and Investment Bank | ||||
| Lender: | ||||
| by | /s/ Jill Wong | |||
| Name: | Jill Wong | |||
| Title: | Director | |||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Gordon Yip | |||
| Name: | Gordon Yip | |||
| Title: | Director | |||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||||
| Lender: | ||||
| by | /s/ Vipul Dhadda | |||
| Name: | Vipul Dhadda | |||
| Title: | Authorized Signatory | |||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Marc Zihlmann | |||
| Name: | Marc Zihlmann | |||
| Title: | Authorized Signatory | |||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: | ||||
| Lender: DEUTSCHE BANK AG NEW YORK BRANCH | ||||
| by | /s/ Ming K. Chu | |||
| Name: Ming K. Chu | ||||
| Title: Director | ||||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Virginia Cosenza | |||
| Name: Virginia Cosenza | ||||
| Title: Vice President | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: | ||
| Lender: GOLDMAN SACHS BANK USA | ||
| by | /s/ Jamie Minieri | |
| Name: Jamie Minieri | ||
| Title: Authorized Signatory | ||
| For any Lender requiring a second signature line: | ||||
| by |
| |||
| Name: | ||||
| Title: | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Lender: HSBC BANK USA, N.A. | ||
| by | /s/ Rafael De Paoli | |
| Name: Rafael De Paoli | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: INTESA SANPAOLO S.p.A., New York Branch | ||||
| by | /s/ Jordan Schweon | |||
| Name: | Jordan Schweon | |||
| Title: | Global Relationship Manager | |||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Francesco Di Mario | |||
| Name: | Francesco Di Mario | |||
| Title: | FVP & Head of Credit | |||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: Mizuho Bank, Ltd. | ||
| Lender: Mizuho Bank, Ltd. | ||
| by | /s/ Tracy Rahn | |
| Name: Tracy Rahn | ||
| Title: Authorized Signatory | ||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: MORGAN STANLEY BANK N.A. | ||||
| Lender: MORGAN STANLEY BANK N.A. | ||||
| by | /s/ Christopher Tarnowsky | |||
| Name: Christopher Tarnowsky | ||||
| Title: Authorized Signatory | ||||
| For any Lender requiring a second signature line: | ||||
| by |
| |||
| Name: | ||||
| Title: | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: MUFG Bank, Ltd. (formerly known as the Bank of Tokyo-Mitsubishi UFJ, Ltd.) | ||||
| by | /s/ Reema Sharma | |||
|
Name: Reema Sharma | ||||
| Title: Director | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
Name of Lender: ROYAL BANK OF CANADA
| Lender: ROYAL BANK OF CANADA | ||
| by | /s/ John Flores | |
| Name: John Flores | ||
| Title: Authorized Signatory | ||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: | ||||
| Lender: Standard Chartered Bank | ||||
| by | /s/ Daniel Mattern | |||
| Name: Daniel Mattern | ||||
| Title: Associate Director | ||||
| Standard Chartered Bank | ||||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| Name of Lender: Sumitomo Mitsui Banking Corporation | ||
| by | /s/ Michael Maguire | |
| Name: Michael Maguire | ||
| Title: Executive Director | ||
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 2 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY
| WELLS FARGO BANK, NATIONAL | ||
| ASSOCIATION | ||
| by | /s/ Mark Holm | |
| Name: Mark Holm | ||
| Title: Managing Director | ||
