Exhibit



 



Exhibit 10.1
WAIVER AND CONSENT NO. 3 dated as of July 29, 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, (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 and (iii) the Waiver and Consent No. 2 dated as of May 10, 2019 (“Waiver No. 2”) 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 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 a one-time temporary waiver, until August 13, 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 Section 5.01(c)(i) of the Credit Agreement shall be deemed to require 






 



Kraft Heinz and the Parent Borrower to furnish to the Lenders the 2019 Q1 Financial Statements on or prior to the 2019 Q1 Financial Statements Extension Deadline.
(b)    During the period from and after the Waiver Effective Date (as defined below) to and including 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 2019 Q1 Financial Statements to the Lenders within the applicable period set forth in Section 5.01(c)(i) 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.
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, Waiver No. 2, 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]












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. 3 TO CREDIT AGREEMENT]








JPMORGAN CHASE BANK N.A., as Administrative Agent and a Lender 

By:    /s/TonyYung 
    Name:  Tony Yung 
    Title:  Executive Director




 





[KRAFT HEINZ – WAIVER AND CONSENT NO. 3 TO CREDIT AGREEMENT]








SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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/ Rita Walz-Cuccioli

	 
	Name:   Rita Walz-Cuccioli

	 
	Title:   Executive Director



	 
	 






	
		
	




	by

	 
	/s/ Terence Corcoran

	 
	Name:   Terence Corcoran

	 
	Title:   Executive Director






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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:   J. Casey Cosgrove

	 
	Title:   Director






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: BARCLAYS BANK PLC


	
		
	

Lender:  BARCALYS BANK PLC

	by

	 
	/s/ May Huang

	 
	Name:   May Huang

	 
	Title:   Assistant Vice President






For any Lender requiring a second signature line:
	
		
	





by

	 
	 

	 
	Name:   

	 
	Title:   






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: BNP Paribas
	
		
	

Lender:  BNP PARIBAS

	by

	 
	/s/ Michael Pearce

	 
	Name:   Michael Pearce

	 
	Title:   Managing Director






For any Lender requiring a second signature line:
	
		
	




	by

	 
	/s/ Michael Hoffman

	 
	Name:   Michael Hoffman

	 
	Title:   Director




















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: CITIBANK, N.A.


	
		
	 

	by

	 
	/s/ Robert Kane

	 
	Name:   Robert Kane

	 
	Title:   Managing Director






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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. 3 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/ Michael Loser

	 
	Name:   Michael Loser

	 
	Title:   Authorized Signatory




















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: DEUTSCHE BANK AG NEW YORK BRANCH


	
		
	

Lender:  

	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. 3 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
























SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: Intesa Sampaolo S.p.A., New York Branch


	
		
	 

	by

	 
	/s/ Jordan Schweon

	 
	Name:   Jordan Schweon

	 
	Title:   Global Relationship Manager






	
		
	




	by

	 
	/s/ Jennifer Feldman Facciola

	 
	Name:   Jennifer Feldman Facciola

	 
	Title:   Vice President




















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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. 3 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. 3 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/ Steve Aronowitz

	 
	Name:   Steve Aronowitz

	 
	Title:   Managing Director






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: Cooperatieve Rabobank U.A. New York Branch


	
		
	

Lender:  Cooperatieve Rabobank U.A. New York Branch

	by

	 
	/s/ Floris Rooijmans

	 
	Name:   Floris Rooijmans

	 
	Title:   Vice President






For any Lender requiring a second signature line:


	
		
	 

	by

	 
	/s/ Gijs Hofman

	 
	Name:   Gijs Hofman

	 
	Title:   Managing Director




















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 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. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: 


	
		
	Lender: STANDARD CHARTERED BANK

	by

	 
	/s/ Guilherme Domingos

	 
	Name:   Guilherme Domingos

	 
	Title:   Director
   Standard Chartered Bank

	 
	 






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Name of Lender: Sumitomo Mitsui Banking Corporation


	
		
	by

	 
	/s/ Richard Eisenberg

	 
	Name:   Richard Eisenberg

	 
	Title:   Managing Director






















SIGNATURE PAGE TO 
WAIVER AND CONSENT NO. 3 TO THE CREDIT AGREEMENT OF
THE KRAFT HEINZ COMPANY AND KRAFT HEINZ FOODS COMPANY 




Wells Fargo Bank, National Association, as a Lender




	
		
	by

	 
	/s/ Mark Holm

	 
	Name:   Mark Holm

	 
	Title:   Managing Director