The Kraft Heinz Company (KHC) 8-K Entry into a Material Definitive Agreement

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 aone-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) aone-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) aone-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;providedthat, 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;providedfurtherthat 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 documentedout-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.

[REMAINDEROFPAGELEFTINTENTIONALLYBLANK]

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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