EX-10.1 2 d723915dex101.htm EX-10.1 EXECUTION VERSION
Exhibit 10.1
EXECUTION VERSION
WAIVER AND CONSENT NO. 1 dated as of March 22, 2019 (this “Waiver”), among THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY, a Delaware corporation (“▇▇▇▇▇ ▇▇▇▇▇”), ▇▇▇▇▇ ▇▇▇▇▇ 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 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 ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower, the Lenders party thereto, the Administrative Agent and ▇.▇. ▇▇▇▇▇▇ Europe Limited, as London agent. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
▇▇▇▇▇ ▇▇▇▇▇ 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 Section 5.01(c)(ii) with respect to the consolidated financial statements of ▇▇▇▇▇ ▇▇▇▇▇ and its Subsidiaries for the fiscal year ended December 29, 2018.
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 a one-time temporary waiver, until May 14, 2019 (the “Extension Deadline”), of compliance by ▇▇▇▇▇ ▇▇▇▇▇ and the Parent Borrower with the requirement to furnish to the Lenders a copy of the consolidated financial statements of ▇▇▇▇▇ ▇▇▇▇▇ 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, it being understood and agreed that Section 5.01(c)(ii) of the Credit Agreement shall be deemed to require ▇▇▇▇▇ ▇▇▇▇▇ and the Parent Borrower to furnish to the Lenders the 2018 Annual Financial Statements on or prior to the Extension Deadline.
(b) During the period from and after the Waiver Effective Date (as defined below) to and including the 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 ▇▇▇▇▇ ▇▇▇▇▇ and the Parent Borrower to furnish the Annual Financial Statements to the Lenders within the period set forth in Section 5.01(c)(ii) of the Credit Agreement.
Section 2. Representations and Warranties. ▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇ 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) ▇▇▇▇▇ ▇▇▇▇▇, (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 ▇▇▇▇▇ ▇▇▇▇▇, confirming the accuracy of the representations and warranties contained in Section 2 hereof.
The Administrative Agent shall notify ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower and the Lenders of the Waiver Effective Date and such notice shall be conclusive and binding.
Section 4. Fees and Expenses.
▇▇▇▇▇ ▇▇▇▇▇ 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 & ▇▇▇▇▇ LLP, counsel for the Administrative Agent.
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.
2
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, 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 ▇▇▇▇▇ ▇▇▇▇▇ 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
3
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed as of the date first above written.
| THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY, | ||||
| By: | /s/ ▇▇▇▇ ▇▇ | |||
| Name: | ▇▇▇▇ ▇▇ | |||
| Title: | Treasurer | |||
| ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY, | ||||
| By: | /s/ Ciao Xing | |||
| Name: | Ciao Xing | |||
| Title: | Assistant Treasurer |
[▇▇▇▇▇ ▇▇▇▇▇ – WAIVER AND CONSENT NO. 1 TO CREDIT AGREEMENT]
| JPMORGAN CHASE BANK N.A., as Administrative Agent and a Lender | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇ | |
| Title: | Executive Director |
[▇▇▇▇▇ ▇▇▇▇▇ – WAIVER AND CONSENT NO. 1 TO CREDIT AGREEMENT]
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
Name of Lender: Banco Santander, S.A., New York Branch
| by | /s/ ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Director Bank Santander, S.A. New York Branch | |||
For any Lender requiring a second signature line:
| by | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Director Banco Santander, S.A, New York Branch |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
Name of Lender: Bank of America, N.A.
| By: | /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: | ||||||
| Lender: BARCLAYS BANK PLC | ||||||
| by | /s/ Jake Lan | |||||
| Name: Jake Lan | ||||||
| Title: Assistant Vice President | ||||||
| For any Lender requiring a second signature line: | ||||||
| by |
| |||||
| Name: | ||||||
| Title: |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: BNP Paribas | ||||||
| Lender: | ||||||
| by | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: | Managing Director | |||||
| by | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Title: | Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: CITIBANK, N.A. | ||||||
| by | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Title: | Vice President |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: Credit Agricole Corporate and Investment Bank | ||||
| Lender: | ||||
| by | /s/ ▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇ | |||
| Title: | Director | |||
| by | /s/ ▇▇▇▇▇▇ ▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇ | |||
| Title: | Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||||
| by | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| For any Lender requiring a second signature line: | ||||
| by | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: DEUTSCHE BANK AG NEW YORK BRANCH | ||||
| Lender: | ||||
| by | /s/ ▇▇▇▇ ▇. ▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇ | ||||
| Title: Director | ||||
| For any Lender requiring a second signature line: | ||||
| by | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Title: Vice President |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA | ||
| Lender: ▇▇▇▇▇▇▇ SACHS BANK USA | ||
| by | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: Authorized Signatory |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Lender: HSBC BANK USA, N.A. | ||
| by | /s/ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ | ||
| Title: Managing Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: Intesa Sanpaolo S.p.A., New York Branch | ||
| Lender: | ||
| by | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| by | /s/ Francesco Di Mario | |
| Name: Francesco Di Mario | ||
| Title: FVP & Head of Credit |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: MIZUHO BANK, LTD. | ||
| Lender: | ||
| by | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Authorized Signatory | ||
| For any Lender requiring a second signature line: | ||
| by |
| |
| Name: | ||
| Title: |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK N.A. | ||||
| Lender: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK N.A. | ||||
| By | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| Title: Authorized Signatory | ||||
| For any Lender requiring a second signature line: | ||||
| by |
| |||
| Name: | ||||
| Title: |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: MUFG Bank, Ltd. (formerly known as The Bank of Tokyo-Mitsubishi UFJ, Ltd.) | ||||
| by | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Title: Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: | ||||
| cooperatieve Rabobank U.A. New York Branch | ||||
| Lender: | ||||
| by | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇-Nivet | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇-Nivet | ||||
| Title: Executive Director | ||||
| For any Lender requiring a second signature line: | ||||
| by | /s/ Floris Rooijmans | |||
| Name: Floris Rooijmans | ||||
| Title: Vice President |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Lender: ROYAL BANK OF CANADA | ||
| by | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: | ||||
| Standard Chartered Bank | ||||
| by | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - A3553 | ||||
| Title: Director | ||||
| Standard Chartered Bank |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| Name of Lender: Sumitomo Mitsui Banking Corporation | ||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Managing Director |
SIGNATURE PAGE TO
WAIVER AND CONSENT NO. 1 TO THE CREDIT AGREEMENT OF
THE ▇▇▇▇▇ ▇▇▇▇▇ COMPANY AND ▇▇▇▇▇ ▇▇▇▇▇ FOODS COMPANY
| ▇▇▇▇▇ FARGO BANK, NATIONAL | ||
| ASSOCIATION | ||
| By | /s/ ▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇ | ||
| Title: Managing Director |