Exhibit 10.1
Execution Version
JOINDER AGREEMENT NO. 1
THIS JOINDER AGREEMENT NO. 1
, dated as of May 24, 2017 (this “
Agreement
”), by and among
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
(in such capacity, the “
Funding Incremental Term Loan Lender
”),
POST HOLDINGS, INC.
, a Missouri corporation (the “
Borrower
”), the
GUARANTORS
party hereto, and
BARCLAYS BANK PLC
, as Administrative Agent.
RECITALS:
WHEREAS,
reference is hereby made to the Amended and Restated Credit Agreement, dated as of March 28, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “
Credit Agreement
”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Borrower, the Lenders party thereto from time to time and
BARCLAYS BANK PLC
, as Administrative Agent;
WHEREAS,
subject to the terms and conditions of the Credit Agreement, the Borrower may request new Incremental Term Loan Commitments by entering into one or more Joinder Agreements with Incremental Term Loan Lenders;
WHEREAS,
pursuant to
Section 2.14
of the Credit Agreement, the Borrower has requested an Incremental Term Loan Commitment with an Increased Amount Date which is the Joinder Agreement No. 1 Effective Date;
WHEREAS,
subject to the terms and conditions of the Credit Agreement, this Agreement may, without the consent of any other Lenders, effect such amendments to the Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of
Section 2.14
of the Credit Agreement; and
WHEREAS,
the Funding Incremental Term Loan Lender hereby agrees to commit to provide incremental term loans (the “
Series A
Incremental Term Loans
”) in the amount set forth on
Schedule A
annexed hereto (the amount set forth on Schedule A annexed hereto, the “
Incremental Term Loan Commitment
”).
NOW, THEREFORE,
in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
The Funding Incremental Term Loan Lender
(i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and that it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and it is experienced in making loans of such type; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
The Funding Incremental Term Loan Lender hereby agrees to provide Series A Incremental Term Loans on the terms and subject to the conditions set forth below. The Incremental Term Loan Commitments of the Funding Incremental Term Loan Lender shall terminate in its entirety on the Joinder Agreement No. 1 Effective Date (after giving effect to the incurrence of the Series A Incremental Term Loans).
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1.
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Incremental Term Loan Commitment
. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender to fund the Series A Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “
Joinder Agreement No. 1 Effective Date
”):
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(a) no Default or Event of Default shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in
Section 7.11
of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this Agreement, Article 5 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
provided
that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;
(d) substantially simultaneously with the funding of the Series A Incremental Term Loans under this Agreement, a portion of the proceeds thereof shall be used to repurchase (i) any and all of the Borrower’s outstanding 2024 Senior Notes and/or (ii) any and all of the Borrower’s outstanding 2025 8.00% Senior Notes, in each case which are validly tendered pursuant to tender offers previously initiated by the Borrower;
(e) all costs, fees, expenses (including, without limitation, reasonable and invoiced out-of-pocket legal fees and expenses and recording taxes and fees) and other compensation contemplated by that certain Engagement Letter, dated May 10, 2017, among the Borrower and the Arrangers and that certain Fee Letter, dated May 10, 2017, between the Borrower and Credit Suisse Securities (USA) LLC, in each case, payable to the Arrangers, the Administrative Agent and the Funding Incremental Term Loan Lender on the Increased Amount Date and invoiced prior to such date shall, upon the initial borrowing of the Series A Incremental Term Loans, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Series A Incremental Term Loans); and
(f) the Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified:
(i) an opinion from (A) Lewis Rice LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on
Schedule B
hereto, in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by Responsible Officers (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) of each Loan Party, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) thereof authorized to act as a Responsible Officer (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) in connection with this Agreement;
(iii) a certificate executed by the Chief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole) on the Increased Amount Date after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice executed by a Responsible Officer of the Borrower in respect of the Series A Incremental Term Loans in accordance with
Section 2.02
of the Credit Agreement;
(v) a certificate executed by a Responsible Officer (including, solely for purposes of this Section 1(f)(v), the secretary of the Borrower) of the Borrower as to the compliance with clauses (a), (b) and (c) of this Section 1 on the Increased Amount Date; and
(vi) for each Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.
As used in this Agreement, “
Arrangers
” means each of Credit Suisse Securities (USA) LLC (together with its affiliates), Barclays Bank PLC, BMO Capital Markets Corp., CoBank, ACB, Coöperatieve Rabobank U.A., New York Branch, Deutsche Bank Securities Inc., Goldman Sachs Bank USA and any of its designated affiliates, HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A. and any of its designated affiliates, Merrill, Lynch, Pierce, Fenner & Smith Incorporated and any of it designated affiliates, Morgan Stanley Senior Funding, Inc., Nomura Securities International, Inc., PNC Bank Capital Markets, RBC Capital Markets,
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SunTrust Robinson Humphrey, Inc., UBS Securities LLC and Wells Fargo Securities, LLC.
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2.
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Applicable Rate.
The Applicable Rate for the Series A Incremental Term Loans shall mean, as of any date of determination, 1.25% per annum for any Base Rate Loans that are Series A Incremental Term Loans and 2.25% per annum for any Eurodollar Rate Loans that are Series A Incremental Term Loans.
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Notwithstanding anything herein or in the Credit Agreement to the contrary, at no time will the Eurodollar Rate in respect of the Series A Incremental Term Loans be deemed to be less than 0.00% per annum.
(a)
Amortization
. The Borrower shall make principal payments on the Series A Incremental Term Loans in installments on the dates and in the amounts set forth below:
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(A)
Payment
Date
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Repayment of
Series A Incremental Term
Loans
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September 30, 2017
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$3,000,000
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December 31, 2017
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$3,000,000
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March 31, 2018
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$3,000,000
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June 30, 2018
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$3,000,000
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September 30, 2018
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$3,000,000
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December 31, 2018
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$3,000,000
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March 31, 2019
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$3,000,000
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June 30, 2019
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$3,000,000
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____________________
1
RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.
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September 30, 2019
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$3,000,000
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December 31, 2019
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$3,000,000
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March 31, 2020
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$3,000,000
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June 30, 2020
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$3,000,000
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September 30, 2020
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$3,000,000
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December 31, 2020
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$3,000,000
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March 31, 2021
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$3,000,000
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June 30, 2021
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$3,000,000
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September 30, 2021
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$3,000,000
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December 31, 2021
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$3,000,000
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March 31, 2022
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$3,000,000
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June 30, 2022
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$3,000,000
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September 30, 2022
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$3,000,000
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December 31, 2022
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$3,000,000
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March 31, 2023
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$3,000,000
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June 30, 2023
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$3,000,000
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September 30, 2023
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$3,000,000
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December 31, 2023
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$3,000,000
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March 31, 2024
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$3,000,000
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(b)
Maturity Date
. The Borrower shall repay the Series A Incremental Term Loans in full on May 24, 2024 (the “
Series A
Incremental Term Loan Maturity Date
”).
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4.
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Most Favored Nation Provision
. With regard to the incurrence of any additional Series of Incremental Term Loans incurred pursuant to the Credit Agreement, the yield applicable to each such additional Series of Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Series of Incremental Term Loans as set forth in the applicable Joinder Agreement;
provided
that the annual yield (as reasonably determined by the Administrative Agent taking into account interest margins, minimum Eurodollar Rate, minimum Base Rate, upfront fees and OID on such term loans with upfront fees and OID equated to interest margins based on assumed four-year life-to-maturity) applicable to such additional Series of Incremental Term Loans will not be more than fifty (50) basis points above the annual yield for the Series A Incremental Term Loans (as reasonably determined by the Administrative Agent consistent with the above (but including only those upfront fees or OID paid generally to all of the Series A Incremental Term Loan Lenders at the time of the incurrence of the Series A Incremental Term Loans)) unless the annual yield with respect to the Series A Incremental Term Loans is increased by an amount equal to the difference between the annual yield with respect to such additional Series of Incremental Term Loans less fifty (50) basis points and the annual yield for the Series A Incremental Term Loans.
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5.
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Voluntary and Mandatory Prepayments.
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(a) Scheduled installments of principal of the Series A Incremental Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments and repayments of the Series A Incremental Term Loans in accordance with
Sections 2.05
and
2.07
of the Credit Agreement and clause (e) of this Section 5, respectively;
provided
that the Series A Incremental Term Loans and all other amounts under the Credit Agreement with respect to the Series A Incremental Term Loans shall be paid in full no later than the Series A Incremental Term Loan Maturity Date.
(b) If the Borrower or any of its Domestic Subsidiaries Disposes of any property or assets of the Borrower or any of its Domestic Subsidiaries (other than any Disposition of any property permitted by
Section 7.05
of the Credit Agreement (except pursuant to
Section 7.05(j)
,
Section 7.05(k)
or
Section 7.05(l)
of the Credit Agreement)) which results in the realization by such Person of Net Cash Proceeds in excess of an aggregate amount of $75,000,000 per fiscal year, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of such Net Cash Proceeds in excess of such $75,000,000 no later than the later to occur of (x) ten (10) Business Days following receipt thereof by such Person or (y) the expiration of the Reinvestment Period (such prepayments (or Cash Collateralization) to be applied as set forth in clauses
(iii)
and
(v)
of
Section 2.05(b)
of the Credit Agreement).
(c) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Domestic Subsidiaries and not otherwise included in clause (b) or (d) of this Section 5, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom in excess of $75,000,000 per fiscal year no later than the later to occur of (x) ten (10) Business Days following receipt thereof by such Person or (y) the expiration of the Reinvestment Period (such prepayments (or Cash Collateralization) to be applied as set forth in clauses
(iii)
and
(v)
of
Section 2.05(b)
of the Credit Agreement).
(d) In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending September 30, 2018), the Borrower shall make prepayments, if any, in accordance with Section 2.05(b)(ii) of the Credit Agreement.
(e) Prepayments made pursuant to (x)
Section 2.05(b)(i)
of the Credit Agreement or (y) clauses (b), (c) or (d) of this Section 5 shall be applied as set forth in clauses
(iii)
and
(v)
of
Section 2.05(b)
of the Credit Agreement, with such prepayments of the Series A Incremental Term Loans being allocated to the next four principal repayment installments thereof in direct order of maturity and, thereafter, on a pro rata basis to the remaining principal installments thereof and the repayment at the final maturity thereof.
As used in this Agreement, “
Net Cash Proceeds
” means with respect to any Disposition by the Borrower or any of its Domestic Subsidiaries, or any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Domestic Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or purchase price adjustment receivable or otherwise, but only as and when so received in cash or Cash Equivalents) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents and Indebtedness consisting of Incremental Equivalent Debt), (B) the out-of-pocket expenses incurred (or reasonably expected to be incurred) by the Borrower or such Domestic Subsidiary in connection with such transaction, (C) taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction, including any taxes payable as a result of any gain recognized in connection therewith (the “
cash proceeds
”);
provided
that, if the amount of any such estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition or event resulting in the receipt by a Loan Party of Extraordinary Receipts, the aggregate amount of such excess shall constitute Net Cash Proceeds at the time such taxes are actually paid and (D) any reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (C) above) related to any of the applicable assets including, without limitation, any working capital adjustments, escrows, earn-outs, and similar items in connection with such transaction (
provided, however
, that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Disposition or event resulting in the receipt by a Loan Party of Extraordinary Receipts and deemed to be received on the date of such reduction);
provided, further
, that if a Responsible Officer of the Borrower shall deliver a certificate to the Administrative Agent prior to the date on which a prepayment of the cash proceeds is required to be made with respect to any Disposition or Extraordinary Receipt hereunder setting forth that the Borrower intends to reinvest such cash proceeds in assets useful in the business of the Borrower and its Domestic Subsidiaries within 360 days of receipt of such cash proceeds (
provided
that if, prior to the expiration of such 360 day period, the Borrower, directly or through a Domestic Subsidiary, shall have entered into a binding agreement providing for such investment on or prior to the date that is 180 days after the expiration of such 360 day period, such 360 day period shall be extended to the date provided for such investment in such binding agreement) (such period, the “
Reinvestment Period
”), such cash proceeds shall not constitute Net Cash Proceeds except to the extent not so reinvested by the end of such 360-day period (or such additional period, if applicable, provided for above).
As used in this Agreement, “
Extraordinary Receipt
” means any cash received by or paid to any Person as a result of proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings) and condemnation awards (and payments in lieu thereof);
provided, however,
that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance or condemnation awards (or payments in lieu thereof) to the extent that such proceeds or awards are received by any Person in respect of any third party claim against, or liability of, such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim or liability and the costs and expenses of such Person with respect thereto.
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6.
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Prepayment Fees.
The Borrower agrees to pay to each Incremental Term Loan Lender that has Series A Incremental Term Loans (each, a “
Series A Incremental Term Loan Lender
” and, collectively, the “
Series A Incremental Term Loan Lenders
”) the following prepayment fees, if any:
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If on or before the date that is six months after the Joinder Agreement No. 1 Effective Date, there occurs any (i) prepayment or repayment of Series A Incremental Term Loans with the proceeds of, or any conversion of such Series A Incremental Term Loans into, any new debt financing or any replacement debt financing, in either case, bearing interest at an “effective” interest rate less than the “effective” interest rate applicable to the Series A Incremental Term Loans (as such comparative rates are determined by the Administrative Agent) or (ii) amendment to the terms of the Series A Incremental Term Loans that, directly or indirectly, reduces the “effective” interest rate applicable to the Series A Incremental Term Loans (in each case, with original issue discount and upfront fees, which shall be deemed to constitute like amounts of original issue discount, being equated to interest margins in a manner consistent with generally accepted financial practice based on an assumed four-year life to maturity) (any such transaction or event described in (i) or (ii) above, a “
Repricing Event
”), then, simultaneously with the consummation of such Repricing Event, the Borrower shall pay to each Series A Incremental Term Loan Lender that refuses to consent to such amendment (which shall include each Series A Incremental Term Loan Lender that refuses to consent to an amendment if such Series A Incremental Term Loan Lender is required to make a mandatory assignment pursuant to
Section 10.13
of the Credit Agreement in connection therewith) a fee (the “
Repricing Fee
”) in an amount equal to 1.00% of the aggregate principal amount of the Series A Incremental Term Loans so repriced or refinanced in such Repricing Event (such Repricing Fee to be allocated among the Series A Incremental Term Loan Lenders pro rata in accordance with the aggregate amount of Series A Incremental Term Loans of each such Series A Incremental Term Loan Lender so repriced or refinanced).
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7.
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Other Fees
. The
Borrower agrees to pay to the Funding Incremental Term Loan Lender as of the Joinder Agreement No. 1 Effective Date, as fee compensation for the Funding Incremental Term Loan Lender’s Incremental Term Loan Commitment
hereunder, an amount equal to 0.25% of the aggregate amount of the Funding Incremental Term Loan Lender’s Incremental Term Loan Commitment, payable to the Funding Incremental Term Loan Lender
out of the proceeds of any Loans as and when funded on the date hereof in respect of the Funding Incremental Term Loan Lender’s Incremental Term Loan Commitment
hereunder.
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8
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Post-Closing Real Estate Covenan
t. The Borrower covenants and agrees that on or before August 31, 2017 (or such later date as may be agreed to by the Administrative Agent in its reasonable discretion with respect to some or all of the Mortgaged Properties that are subject to a Mortgage on the date hereof) it shall:
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(i) execute and deliver a modification for each Mortgage on each Mortgaged Property that is subject to a Mortgage on the date hereof (the "Modifications") in form and substance reasonably satisfactory to the Administrative Agent duly executed by the appropriate Loan Party;
(ii) provide evidence reasonably satisfactory to the Administrative Agent that counterparts of the Modifications are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary in order to maintain a valid first and subsisting Lien on the property described therein subject to Permitted Prior Liens in favor of the Administrative Agent for the benefit of the Secured Parties and evidence that all filing, documentary, stamp, intangible and recording taxes and fees will be paid upon the recording of the Modifications; and
(iii) cause to be provided to the Administrative Agent fully paid endorsement(s) to the existing Mortgage Policies reasonably satisfactory the Administrative Agent or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages has not changed and confirming and/or insuring that since the issuance of the existing title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Prior Liens).
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9.
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Credit Agreement Governs.
Except as set forth in this Agreement, the Series A Incremental Term Loans shall otherwise be subject to the provisions of the Credit Agreement and the other Loan Documents.
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10.
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Representations and Warranties
. By its execution of this Agreement, the Borrower and each Guarantor hereby represents and warrants that, as of the date hereof:
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(a) each Loan Party has all requisite power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement and, with respect to the Borrower, the Credit Agreement;
(b) the execution, delivery and performance by each Loan Party of this Agreement and with respect to the Borrower, the Credit Agreement have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material contract to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law;
(c) no material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or with respect to the Borrower, the Credit Agreement, except for the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(d) this Agreement has been duly executed and delivered by each Loan Party that is a party hereto. Each of this Agreement and the Credit Agreement constitutes a legal, valid and binding obligation of each Loan Party to the extent it is a part thereto, enforceable against each Loan Party in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(e) the representations and warranties contained in Article 5 of the Credit Agreement or any other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
provided
that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects; and
(f) no Event of Default or Default has occurred and is continuing, in each case immediately before and immediately after giving effect to this Agreement and the transactions contemplated hereby.
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11.
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Eligible Assignee.
By its execution of this Agreement, the Funding Incremental Term Loan Lender represents and warrants that it is an Eligible Assignee.
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12
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Consents
. For purposes of
Section 10.06(b)
of the Credit Agreement, the Borrower hereby consents to any assignee of the Funding Incremental Term Loan Lender or any of its Affiliates becoming a Series A Incremental Term Loan Lender in connection with the initial syndication of the Series A Incremental Term Loans to the extent the inclusion of such assignee in the syndicate had been disclosed to and agreed to by the Borrower prior to the Joinder Agreement No. 1 Effective Date.
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13.
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Notice
. For purposes of the Credit Agreement, the initial notice address of the Funding Incremental Term Loan Lender shall be as set forth below its signature below.
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14.
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Foreign Lenders
. For each Funding Incremental Term Loan Lender that is a Foreign Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Funding Incremental Term Loan Lender may be required to deliver to the Administrative Agent pursuant to
Section 3.01(e)
of the Credit Agreement.
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15.
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No Novation.
By its execution of this Agreement, each of the parties hereto acknowledges and agrees that the terms of this Agreement do not constitute a novation, but, rather, a supplement of the terms of a pre-existing indebtedness and related agreement, as evidenced by the Credit Agreement.
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16.
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Recordation of the Series A Incremental Term Loans
. Upon execution and delivery hereof, the Administrative Agent will record the Series A Incremental Term Loans made by the Funding Incremental Term Loan Lender in the Register.
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17.
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Amendment, Modification and Waiver.
This Agreement may not be amended, restated, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
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18.
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Entire Agreement
. This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof.
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19.
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Governing Law; Jurisdiction; Etc.
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THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY HERETO OR TO THE NEGOTIATION, EXECUTION OR PERFORMANCE THEREOF OR TO THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
THE PROVISIONS OF
SECTIONS 10.14(b)
,
(c)
AND
(d)
,
10.15
,
10.16
AND
10.18
OF THE CREDIT AGREEMENT ARE INCORPORATED BY REFERENCE HEREIN AND MADE A PART HEREOF.
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20.
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Loan Document.
This Agreement shall constitute a Loan Document under the terms of the Credit Agreement.
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21.
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Reaffirmation.
The Borrower and each Guarantor hereby (a) acknowledges that it has reviewed the terms and provisions of the Credit Agreement and this Agreement and (b) reaffirms, as applicable, its guarantees, pledges, grants of security interests and other obligations under and subject to the terms of each of the Loan Documents to which it is party and agrees that, notwithstanding the effectiveness of this Agreement or any of the transactions contemplated hereby, such guarantees, pledges, grants of security interests and other obligations, and the terms of each of the Loan Documents to which it is a party, as modified or supplemented in connection with this Agreement and the transactions contemplated hereby, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all the Obligations.
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The Borrower and each Guarantor acknowledges and agrees that each Loan Document to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Agreement or the First Joinder Agreement.
Nothing in this Agreement shall (i) constitute any waiver of any provisions of the Credit Agreement or any other Loan Document unless expressly set forth herein or (ii) be deemed to require the consent of any Guarantor to any future amendments to or waivers of the Credit Agreement or any other Loan Document, in whole or part.
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22.
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Severability
. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
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21.
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Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
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23.
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USA PATRIOT Act
.
Each of the Funding Incremental Term Loan
Lender and the Administrative Agent (for itself and not on behalf of the Funding Incremental Term Loan
Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
Act
”), it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, tax identification number and address of the Borrower and each Guarantor and other information that will allow the Funding Incremental Term Loan
Lender or the Administrative Agent, as applicable, to identify the Borrower and each Guarantor in accordance with the Act. The Borrower shall, and shall cause each Guarantor to, promptly following a request by the Administrative Agent or the Funding Incremental Term Loan
Lender, provide all documentation and other information that the Administrative Agent or the Funding Incremental Term Loan
Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
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[
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IN WITNESS WHEREOF
, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first written above.
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Funding Incremental Term Loan Lender:
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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/s/ Christopher Day
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Name:
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CHRISTOPHER DAY
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Title:
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AUTHORIZED SIGNATORY
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By:
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/s/ Tino Schaufelberger
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Name:
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Tino Schaufelberger
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Title:
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Authorized Signatory
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[Signature Page to Joinder Agreement No. 1]
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Borrower:
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POST HOLDINGS, INC.
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By:
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/s/ Diedre J. Gray
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Name: Diedre J. Gray
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Title: Senior Vice President, General Counsel and Chief Administrative Officer, Secretary
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Guarantors:
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AGRICORE UNITED HOLDINGS INC.
ATTUNE FOODS, LLC
CUSTOM NUTRICEUTICAL LABORATORIES, LLC
DYMATIZE ENTERPRISES, LLC
DYMATIZE HOLDINGS, LLC
GOLDEN ACQUISITION SUB, LLC
GOLDEN BOY NUT CORPORATION
GOLDEN BOY PORTALES, LLC
POST ACQUISITION SUB IV, LLC
PREMIER NUTRITION CORPORATION
SUPREME PROTEIN, LLC
TA/DEI-A ACQUISITION CORP.
TA/DEI-B1 ACQUISITION CORP.
TA/DEI-B2 ACQUISITION CORP.
TA/DEI-B3 ACQUISITION CORP.
AMERICAN BLANCHING COMPANY
PRIMO PIATTO, INC.
DAKOTA GROWERS PASTA COMPANY, INC.
DNA DREAMFIELDS COMPANY, LLC
GB ACQUISITION USA, INC.
GOLDEN NUT COMPANY (USA) INC.
NUTS DISTRIBUTOR OF AMERICA INC.
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By:
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/s/ Diedre J. Gray
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Name: Diedre J. Gray
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Title: Secretary of above-listed Guarantor
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[Signature Page to Joinder Agreement No. 1]
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MFI HOLDING CORPORATION
MICHAEL FOODS, INC.
MICHAEL FOODS GROUP, INC.
MICHAEL FOODS OF DELAWARE, INC.
NATIONAL PASTEURIZED EGGS, INC.
PCB BATTLE CREEK, LLC
POST CONSUMER BRANDS, LLC
POST FOODS, LLC
NATIONAL PASTEURIZED EGGS, LLC
CASA TRUCKING, INC.
CRYSTAL FARMS REFRIGERATED DISTRIBUTION COMPANY
MFI INTERNATIONAL, INC.
MOM BRANDS COMPANY, LLC
MOM BRANDS SALES, LLC
NORTHERN STAR CO.
PAPETTI’S HYGRADE EGG PRODUCTS, INC.
M.G. WALDBAUM COMPANY.
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By:
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/s/ Diedre J. Gray
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Name: Diedre J. Gray
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Title: Assistant Secretary of above-listed
Guarantor
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[Signature Page to Joinder Agreement No. 1]
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Consented to by:
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BARCLAYS BANK PLC
as Administrative Agent
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By:
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/s/ Ronnie Glenn
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Name: Ronnie Glenn
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Title: Vice President
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[Signature Page to Joinder Agreement No. 1]
SCHEDULE A
TO JOINDER AGREEMENT NO. 1
Incremental Term Loan Commitment
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Name of Lender
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Type of Commitment
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Amount
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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Incremental Term Loan Commitment
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$1,200,000,000
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Total: $1,200,000,000
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[Schedule A to Joinder Agreement No. 1]
SCHEDULE B
TO JOINDER AGREEMENT NO. 1
Jurisdictions
New York
Missouri
Illinois
Minnesota
North Dakota
Nebraska
[Schedule B to Joinder Agreement No. 1]
Exhibit 99.1
Post Holdings Announces Early Results of the Previously Announced Cash Tender Offers and Increase in Size of New Incremental Term Loan Facility
St. Louis, Missouri - May 24, 2017
- Post Holdings, Inc. (NYSE:POST) (the “Company” or “Post”) today announced the early results as of 5:00 p.m. New York City time on May 23, 2017 (the “Extended Early Tender Deadline”) for its previously announced cash tender offer (the “2025 Notes Tender Offer”) for any and all of its 8.00% senior notes due 2025 (the “2025 Notes”), having an aggregate outstanding principal amount of $400.0 million. On May 22, 2017 the Company announced an extension of the deadline for holders of 2025 Notes to validly tender and not validly withdraw their 2025 Notes to receive a related consent payment to the Extended Early Tender Deadline.
The Company has accepted for purchase $262,422,000 (or approximately 65.6%) of the 2025 Notes and $650,979,000 (or approximately 81.4%) of its 7.75% senior notes due 2024 (the “2024 Notes”) pursuant to the previously announced cash tender offer for any and all of its 2024 Notes (the “2024 Notes Tender Offer”, and together with the 2025 Notes Tender Offer, the “Tender Offers”), having an aggregate principal amount of $800.0 million. The results of the early Tender Offers were announced on May 22, 2017 with no additional 2025 Notes tendered between then and the Extended Early Tender Deadline.
The Company also announced today that it increased the size of its previously announced new incremental term loan facility under its existing credit facility from $2.0 billion to $2.2 billion. The Company funded the payment of the tendered and accepted 2024 Notes and 2025 Notes with the net proceeds from the new incremental term loan facility, which the Company partially funded today in the amount of $1.2 billion. As previously announced, the Company intends to use the remaining net term loan proceeds, along with cash on hand, for the Company’s previously announced acquisition of Weetabix Limited.
Holders of 2024 Notes and 2025 Notes may still tender their 2024 Notes and 2025 Notes pursuant to the Offer to Purchase and Consent Solicitation dated May 8, 2017 (the “Offer to Purchase”) until midnight, New York City time, at the end of June 5, 2017, unless the Tender Offers are extended or earlier terminated by the Company (such time and date, as they may be extended or earlier terminated, the “Expiration Time”). The final settlement date for 2024 Notes tendered after May 19, 2017 and 2025 Notes tendered after May 23, 2017 but prior to the Expiration Time is currently expected to occur on June 6, 2017. Holders that validly tender their 2024 Notes after May 19, 2017 or 2025 Notes after May 23, 2017 but prior to the Expiration Time will not be entitled to receive the previously announced consent payment of $30.00 per $1,000 principal amount of 2024 Notes or 2025 Notes.
Credit Suisse is acting as the sole dealer manager for the Tender Offers. The information agent and tender agent is Global Bondholder Services Corporation. Copies of the Offer to Purchase, Letter of Transmittal and Consent and related tender offering and consent solicitation materials are available by contacting the information agent at (212) 430-3774 (banks and brokers) and at (866) 470-4500 (all others). Questions regarding the Tender Offers should be directed to Credit Suisse at (800) 820-1653.
The Company issued a notice of redemption on May 22, 2017 to redeem the remaining outstanding 2024 Notes pursuant to the redemption and satisfaction and discharge provisions of the indenture governing the 2024 Notes, as supplemented (the “Indenture”), at a redemption price pursuant to the terms of the Indenture, plus accrued and unpaid interest, if any, to the redemption date of June 7, 2017. At this time, the Company does not contemplate a redemption of any 2025 Notes that are not validly tendered in the 2025 Notes Tender Offer.
None of the Company, the dealer manager, the information agent and tender agent, or the trustee for the 2024 Notes and 2025 Notes, or any of their respective affiliates, is making any recommendation as to whether holders should tender any 2024 Notes or 2025 Notes in response to the Tender Offers. Holders must make their own decision as to whether to tender any of their 2024 Notes or 2025 Notes and, if so, the principal amount of 2024 Notes or 2025 Notes to tender. This announcement is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any security and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offering, solicitation or sale would be unlawful. The
Tender Offers are being made solely by means of the Offer to Purchase. In those jurisdictions where the securities, blue sky or other laws require any tender offer to be made by a licensed broker or dealer, the Tender Offers will be deemed to be made on behalf of the Company by the dealer manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction.
Cautionary Statement on Forward-Looking Language
Forward-looking statements, within the meaning of Section 21E of the Securities Exchange Act of 1934, are made throughout this release. These forward-looking statements are sometimes identified by the use of terms and phrases such as “believe,” “should,” “would,” “expect,” “project,” “estimate,” “anticipate,” “intend,” “plan,” “will,” “can,” “may,” or similar expressions elsewhere in this release. All forward-looking statements are subject to a number of important factors, risks, uncertainties and assumptions that could cause actual results to differ materially from those described in any forward-looking statements. These factors and risks include, but are not limited to, unanticipated developments that prevent, delay or negatively impact the Tender Offers and Consent Solicitations, the new incremental term loan and other financial, operational and legal risks and uncertainties detailed from time to time in the Company’s cautionary statements contained in its filings with the Securities and Exchange Commission. These forward-looking statements represent the Company’s judgment as of the date of this press release. The Company disclaims, however, any intent or obligation to update these forward-looking statements. There can be no assurance that the proposed transactions will be completed as anticipated or at all.
Contact:
Investor Relations
Brad Harper
brad.harper@postholdings.com
(314) 644-7626
