HomeMy WebLinkAboutItem 08March 3, 2016 Item No.
RESOLUTION APPROVING THE LOAN OF A MINNESOTA INVESTMENT FUND GRANT TO
MOM BRANDS CO. LLC AND RELATED DOCUMENTS
March 7, 2016 City Council Meeting
Proposed Action
Staff recommends adoption of the following motion: Move to adopt a resolution approving a Loan
Agreement with MOM Brands Company LLC and a Grant Contract with State of Minnesota for a
Minnesota Investment Fund Grant.
Passage of this motion will result in providing a State funded Forgivable Loan to facilitate the
retention of a minimum of 250 jobs by MOM Brands Company LLC d.b.a Post Consumer Brands (Post)
at their cereal division headquarters in Lakeville.
.6
The City proposes a Loan Agreement to provide a $750,000 to Post to retain a minimum of 250 jobs
for a minimum of two years from the benefit date of May 4, 2015 which is the date Post acquired MOM
Brands. The mimimum wage rate for the retained jobs according to the Loan Agreement is $18.48 per
hour. The actual wage levels for the majority of the jobs being retained is considerably higher. Post
also agrees to continue their operations in Lakeville for a minimum of five years or until 2020.
The proposed loan is structured to be forgivable in that the entire loan amount is considered to be
forgiven after the 250 jobs have been retained for two years from the benefit date. Post has also
agreed to a Promissory Note and a Corporate Guaranty. If the job retention and minimum wage goals
are not met, Post is required to repay a pro -rata share of the loan plus interest at a rate of 3.25%
Staff recommends approval of the resolution approving the Grant Contract with the State of MN in the
amount of $750,000, Loan Agreement (which includes the necessary Business Subsidy requirements)
and an executed Promissory Note and Corporate Guarantee.
Primary Issues to Consider
• Is this request for a Forgivable Loan consistent with the City's policies?
The request is consistent with the City's Business Subsidy Policies.
Supporting Information
• Resolution, Grant Contract with the State of MN, Loan Agreement and attachments
David L. Olson, Community and Economic Development Director
c: Jill Bolletteri, Post Consumer Brands LLC
Financial Impact: $750,000 Budgeted:Y/N Y Source: Grant from the State of MN
Envision Lakeville Community Values: Diversified Economic Development
CITY OF LAKEVILLE, MINNESOTA
RESOLUTION NO.
RESOLUTION APPROVING THE LOAN OF A MINNESOTA
INVESTMENT FUND GRANT TO MOM BRANDS COMPANY, LLC AND
RELATED DOCUMENTS
WHEREAS, MOM Brands Company, LLC, a Minnesota corporation (the `Borrower")
proposes to remain located in an existing facility in the City of Lakeville and will retain existing
jobs in its current location. within the City (the "Project");
WHEREAS, pursuant to a resolution adopted on August 3, 2015, the City Council (the
"City Council") of the City of Lakeville (the "City") approved the submission of an application
for a grant from the Minnesota Investment Fund Program administered by the Minnesota
Department of Employment and Economic Development ("DEED"); and
WHEREAS, the City has received a Minnesota Investment Fund Grant Contract, Grant
Contract Number CDAP-15-0012-H-FY16 (the "Grant Agreement") from DEED, to obtain grant
funds in the amount of $750,000 and loan such grant funds to the Borrower for the purpose of
assisting with the retention of employees following the purchase of the business located in the
City by MOM Brands; and
WHEREAS, the City Council has received and reviewed an Agreement for Loan of
Minnesota Investment Fund — Forgivable Loan (the "Loan Agreement"), between the City and
the Borrower, providing for the loan of the grant funds in the amount of $750,000 to the
Borrower (the "Loan"), which agreement includes a "business subsidy agreement" as defined in
Minnesota Statutes, Sections 166J.993 to 116J.995, as amended (the "Business Subsidy Act");
and
WHEREAS, it is proposed that the Loan be considered forgivable provided that the
Borrower complies with certain requirements of the business subsidy agreement contained in the
Loan Agreement; and
WHEREAS, to evidence the repayment obligations of the Borrower under the Loan
Agreement, the Borrower will execute and deliver to the City a Promissory Note (the "Note")
and a Corporate Guaranty (the "Corporate Guaranty"); and
WHEREAS, the City Council has had the opportunity to review the Loan Agreement,
Note, and Corporate Guaranty; and
WHEREAS, on March 7, 2016, the City conducted a duly noticed public hearing as
required by Section 116J.994, subdivision 5 of the Business Subsidy Act on the proposed Loan
to be made to the Borrower pursuant to the Loan Agreement.
185982v1
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Lakeville, as follows:
1. The Grant Agreement, the Corporate Guaranty, Note, and the Loan Agreement,
and the business subsidy agreement contained therein, are approved (collectively, the "Loan
Documents").
2. The Mayor and the City Administrator are authorized and directed to sign the
Loan Documents and any other documents or certificates necessary to carry out the transactions
described in the Loan Documents.
3. The Loan Documents are approved in substantially the form on file in City Hall,
subject to modifications that do not alter the substance of the transaction and are approved by the
Mayor and the City Administrator; provided that execution of the document will be conclusive
evidence of their approval.
Approved by the City Council of the City of Lakeville, Minnesota this 7th day of March,
2016.
CITY OF LAKEVILLE
1-tild
ATTEST:
Charlene Friedges, City Clerk
185982v1
Matt Little, Mayor
STATE OF MINNESOTA
GRANT CONTRACT
DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT
BUSINESS AND COMMUNITY DEVELOPMENT DIVISION
Minnesota Investment Fund Grant Contract
Grant Number: CDAP-15-0012-H-FY16 SC 106112
Grant Amount: $750,000.00
The City of Lakeville
MOM Brands Company, LLC
This Grant Contract is between the State of Minnesota, acting through the Department of Employment
and Economic Development, Business and Community Development Division, ("STATE") and the City
of Lakeville ("Grantee"), 20195 Holyoke Avenue, Lakeville, MN 55044.
Recitals
1. Under Minn. Stat. §§ 116J.035 and 116J.8731, Minnesota Investment Fund, the State is empowered
to enter into this Grant.
2. The State is in need of local units of government to administer projects in accordance with Minn.
Stat. §§ 116J.8731 Minnesota Investment Fund; Minnesota Rules Chapter 4300; and policies and
procedures developed by the State.
3. The Grantee represents that it is duly qualified and agrees to perform all services described in this
Grant Contract to the satisfaction of the State. If administrative costs are eligible under this Grant
pursuant to Minn. Stat. § 16B.98, subdivision 1, the Grantee agrees to minimize administrative
costs as a condition of this Grant.
Grant Contract
1. Term of Grant Contract
1.1 Effective Date: November 20, 2015. Per Minn. Stat. § 16B.98 subd. 5 and Minn. Stat. §
16B.98 subd. 7, no payments will be made to the Grantee until this Grant Contract is fully
executed.
1.2 Benefit Date: May 4, 2015
1.3 Compliance Date: May 4, 2017
1.4 Continued Existence Date: May 4, 2020
1.5 Expiration Date: August 4, 2017
1.6 Survival of Terms. The following clauses survive the expiration or cancellation of this
Grant Contract: 8. Liability; 9. State Audits; 10. Government Data Practices; 12. Publicity and
Endorsement; 13. Governing Law, Jurisdiction and Venue; and 15. Data Disclosure.
2. Grantee's Duties
2.1 Duties. The Grantee, who is not a State employee, will perform the duties specified in
Exhibit A which is attached and incorporated into this Grant Contract.
2.2 Application. The Grantee has made application ("APPLICATION") to the State for the
purpose of providing a loan to MOM Brands Company, LLC (`BORROWER") in the manner
described in the application which is incorporated into this Grant Contract by reference.
2.3 Provisions for Contracts and Sub grants
a) Contract Provisions. The Grantee must include in any contract and sub -grant,
including the loan agreement with the Borrower, in addition to provisions that define
a sound and complete agreement, such provisions that require contractors, sub -grantees
and the Borrower to comply with applicable state and federal laws.
b) Payment of Contractors and Sub -Contractors. The Grantee must ensure that all
contractors and subcontractors performing work covered by this Grant are paid for their
work that is satisfactorily completed.
3. Time
The Grantee must comply with all of the time requirements described in this Grant Contract.
In the performance of this Grant, time is of the essence.
4. Consideration of payment
4.1 Consideration. The State will pay the Grantee under this Grant Contract as follows:
a) Compensation. The Grantee will be reimbursed according to the approved Budget
contained in Exhibit B, which is attached and incorporated into the Grant Contract
portion of this Grant Contract.
b) Total Obligation. The total obligation of the State for all compensation and
reimbursement to the Grantee under this Grant Contract will not exceed $750,000.00
4.2 Payment.
a) Invoices. The State will disburse funds to the Grantee pursuant to this Contract, based
upon payment requests submitted by the Grantee and reviewed and approved by the
State. Payment requests must be accompanied by supporting invoices that relate to the
activities in the approved budget and the documentation detailed in Section 4.2.b. of
this Grant Contract. The State will provide payment request forms.
If the Grantee has received invoices from the Borrower for expenditures made after
effective date of this Grant Contract but before the Grant is closed or until all funds are
disbursed, whichever is earlier, the Grantee shall submit those invoices to the State for
review and approval no later than 25 days after the end date of the state fiscal year of
June 30r''. To ensure that all funds are drawn down by the expiration date of the Grant,
all Grantee payment requests must be received by the State at least 30 days prior to the
Expiration Date.
b) Documentation. The following information must be submitted and approved by the
State before funds will be released:
1) Minnesota Investment Fund loan agreement, promissory note and corporate
guaranty from parent company, Post Holdings, Inc.
2) Evidence of equity injection in the amount of $452,375,000.
3) Proof of financing in the amount of $696,500,000.
4) Documentation of total project costs.
c) Eligible Costs. Eligible costs include the costs identified in Exhibit B of this Grant
Contract that are incurred during the contract period.
5. Conditions of Payment
All services provided by the Grantee under this Grant Contract must be performed to the State's
satisfaction, as determined at the sole discretion of the State's Authorized Representative and
N
in accordance with all applicable federal, state and local laws, ordinances, rules, and
regulations. The Grantee will not receive payment for work found by the State to be
unsatisfactory or performed in violation of federal, state or local law.
The State will not authorize disbursement of funds if there has been any adverse change in the
Borrower's financial condition, organization, operations, or their ability to repay the project
financing.
6. Authorized Representative
The State's Authorized Representative is Jordan Zeller, Senior Loan Officer, l't National Bank
Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101, 651-259-7426,
jordan.zeller@state.mn.us, or his successor, and has the responsibility to monitor the Grantee's
performance and the authority to accept the services provided under this Grant Contract. If the
services are satisfactory, the State's Authorized Representative will certify acceptance on each
payment request form submitted for payment.
The Grantee's Authorized Representative is David Olson, Director of Community &
Economic Development, City of Lakeville, 20195 Holyoke Avenue, Lakeville, MN 55044
(952) 985-4400 or his successor. If the Grantee's Authorized Representative changes at any
time during this Grant Contract, the Grantee must immediately notify the State.
7. Assignment, Amendments, Waiver, and Grant Contract Complete
7.1 Assignment. The Grantee shall neither assign nor transfer any rights or obligations under
this Grant Contract without the prior written consent of the State, approved by the same parties
who executed and approved this Grant Contract, or their successors in office.
7.2 Amendments. Any amendment to this Grant Contract must be in writing and will not be
effective until it has been executed and approved by the same parties who executed and
approved the original Grant Contract, or their successors in office.
7.3 Waiver. If the State fails to enforce any provision of this Grant Contract, that failure does
not waive the provision or the State's right to enforce it.
7.4 Grant Contract Complete. This Grant Contract contains all negotiations and agreements
between the State and the Grantee. No other understanding regarding this Grant Contract,
whether written or oral, may be used to bind either party. Where provisions of the Application
are inconsistent with the other provisions of this Contract, the other provisions of this Contract
will take precedence over the provisions of the Application.
8. Liability
Subject to the provisions and limitations of Minn. Stat. § 466, the Grantee must indemnify,
save, and hold the State, its agents, and employees harmless from any claims or causes of
action, including attorney's fees incurred by the State, arising from the performance of this
Grant Contract by the Grantee or the Grantee's agents or employees. This Clause will not be
construed to bar any legal remedies the Grantee may have for the State's failure to fulfill its
obligations under this Grant Contract.
9. State Audits
Under Minn. Stat. § 16B.98, subd. 8, the Grantees books, records, documents, and accounting
procedures and practices of the Grantee or other party relevant to this Grant Contract or
transaction are subject to examination by the State and/or the State Auditor or Legislative
Auditor, as appropriate, for a minimum of six (6) years from the end of this Grant Contract,
3
receipt and approval of all final reports, date of final repayment to the State, or the required
period of time to satisfy all State and program retention requirements, whichever is later.
10. Government Data Practices
The Grantee and State must comply with the Minnesota Government Data Practices Act, Minn.
Stat. § Ch. 13, as it applies to all data provided by the State under this Grant Contract, as it
applies to all data created, collected, received, stored, used, maintained, or disseminated by the
Grantee under this Grant Contract. The civil remedies of Minn. Stat. § 13.08 apply to the
release of data referred to in this Clause by either the Grantee or the State.
If the Grantee receives a request to release the data referred to in this Clause, the Grantee must
immediately notify the State. The State will give the Grantee instructions concerning the
release of the data to the requesting party before the data is released. The Grantee's response
to the request shall comply with all applicable law.
11. Workers' Compensation
The Grantee certifies that it is in compliance with Minn. Stat. § 176.181, subd. 2, pertaining to
workers' compensation insurance coverage. The Grantee's employees and agents will not be
considered State employees. Any claims that may arise under the Minnesota Workers'
Compensation Act on behalf of these employees and any claims made by any third party as a
consequence of any act or omission on the part of these employees are in no way the State's
obligation or responsibility.
12. Publicity and Endorsement
12.1 Publicity. Any publicity regarding the subject matter of this Grant Contract must identify
the State as the sponsoring agency. For purposes of this provision, publicity includes notices,
informational pamphlets, press releases, research, reports, signs, and similar public notices
prepared by or for the Grantee individually or jointly with others, or any subcontractors, with
respect to the program, publications, or services provided resulting from this Grant Contract.
12.2 Endorsement. The Grantee and the Borrower must not claim that the State endorses its
products or services.
13. Governing Law, Jurisdiction, and Venue
Minnesota law, without regard to its choice -of -law provisions, governs this Grant Contract.
Venue for all legal proceedings out of this Grant Contract, or its breach, must be in the
appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota.
14. Termination
14.1 Termination by the State. The State may immediately terminate this Grant Contract with
or without cause, upon 30 days' written notice to the Grantee. Upon termination, the Grantee
will be entitled to payment, determined on a pro -rata basis for approved costs incurred.
14.2 Termination for Cause. The State may immediately terminate this Grant Contract if the
State finds that there has been a failure to comply with the provisions of the Grant Contract,
that reasonable progress has not been made or that the purposes for which the funds were
granted have not been or will not be fulfilled. The State may take action to protect the interests
of the State of Minnesota, including the refusal to distribute additional funds and requiring the
return of all or part of the funds already disbursed.
14.3 Termination for Insufficient Funding. The State may immediately terminate this Grant
Contract if-
a)
f
a) It does not obtain funding from the Minnesota Legislature;
4
b) Or, if funding cannot be continued at a level sufficient to allow for the payment of the
services covered here. Termination must be by written or electronic notice to the
Grantee. The State is not obligated to pay for any services that are provided after notice
and effective date of termination. However, the Grantee will be entitled to payment
determined on a pro -rata basis, for services satisfactorily performed to the extent that
funds are available. The State will not be assessed any penalty if the contract is
terminated because of the decision of the Minnesota Legislature, or other funding
source, not to appropriate funds. The State must provide the Grantee notice of lack of
funding within a reasonable time of the State's receiving that notice.
15. Data Disclosure
Under Minn. Stat. § 270C.65, subd. 3, and other applicable law, the Grantee consents to
disclosure of its social security number, federal employer tax identification number, and/or
Minnesota tax identification number, already provided to the State, to federal and state agencies
and state personnel involved with the payment of state obligations. These identification
numbers may be used in the enforcement of federal and state tax laws which could result in
action requiring the Grantee to file state tax returns and pay delinquent state tax liabilities, if
any.
Other Provisions
16. Affirmative Action
The Grantee is encouraged to prepare and implement an affirmative action plan for the
employment of minority persons, women, and the qualified disabled and submit the plan to the
Commissioner of Human Rights as required by Minn. State. §363A.36.
17. Conflict of Interest
The Grantee shall comply with the Conflict of Interest provisions of Minn. Stat. §§ 471.87 and
471.88.
18. Successors and Assignees
This Contract shall be binding upon any successors or assignees of the parties.
19. Minnesota Business Subsidy Law
This Contract must comply, if appropriate, with the Minnesota Business Subsidy Law, Minn.
Stat §§ 116J.993 -116J.995.
20. Debarment and Suspension Certification (if applicable)
The Grantee agrees to follow the President's Executive Order 12549 and the implementation
regulation "Non -procurement Debarment and Suspension: Notice and Final Rule and Interim
Rule," found at 53 FR 19189, May 26, 1988, as amended at 60 FR 33041, June 26, 1995,
including Appendix B, "Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Execution — Lower Tier Covered Transactions;" unless excluded by law or
regulation.
5
1. STATE ENCUMBRANCE VERIFICATION 3. STATE AGENCY
Individual certifies that funds have been encumbered
as required by Minn. Stat. § §16A.1 S and
16C.05.
Signed:
Date: 02/12/2016
SWIFT Contract/PO No(s) 3-241613 15024
2. GRANTEE
The Grantee certifies that the appropriate person(s) have
executed the grant contract on behalf of the Grantee as
required by applicable articles, bylaws, resolutions, or
ordinances.
By: _
Title:
Date:
By: _
Title:
Date:
Distribution:
Agency
Grantee
State's Authorized Representative — Photo Copy
By:
(with delegated authority)
Title:
Date
C.
EXHIBIT A
GRANTEES DUTIES
The Grantee, who is not a State employee, will,
1. Administer the project in accordance with the requirements of the Minnesota Investment Fund
Program, Minn. Stat. § 116J.8731; Minn. Rules, Chapter 4300; and policies and procedures
developed by the State.
2. Enter into a Loan Agreement with the Borrower for $750,000.00, ("LOAN") and assure the
following conditions are included in such Agreement:
2.1 Conditions
a) Loan Term: 4 years
b) Interest Rate: 3.25%
c) Collateral: Corporate Guaranty from parent Post Holdings, Inc.
2.2 Job Retention and Wages
a) The Borrower will retain 250 permanent non -contract FTE jobs, all paying at least $18.48
per hour or more in wages and benefits. Benefits are defined as one or more of the
following: health, dental, life and disability insurance, retirement program and profit
sharing paid by the Borrower.
b) If the Borrower fails to meet the job retention and wage goal level commitments by the
Compliance Date, the Grantee may, after holding a public hearing, extend the grant
period for one year from the Compliance Date, after approval by the State. If, after the
extension, the Borrower fails to meet the job creation goal and wage level commitment,
the Borrower will be required to repay to the Grantee all or a proportional share of the
Loan funds on an accelerated term. The Grantee will then also be required to return to
the State all or a proportional share of the Loan funds.
2.3 Payment of Prevailing Wages to Contractors
Minn. Stat. § 116J.871 applies if a business receives $500,000 or more in State loan funds
and the State funds are used for construction, installation (including equipment), remodeling
and repairs.
2.4 Surety Deposits Required for Construction Contracts
Minn. Stat. § 290.9705, pertains to foreign corporations that perform construction work in
Minnesota and applies if state funds are used for construction.
2.5 Job Listing Agreement
Minn. Stat. § 11 61 L.66, subd. 1, applies when a business or private enterprise receives
$200,000 or more per year in funds from the State. When applicable, the business or private
enterprise shall agree to enter into a Job Listing Agreement with the MN Department of
Employment and Economic Development,
2.6 Loan Forgiveness
If the job creation goals and wage level commitments detailed in Sections 2.2 a and b of this
section are met by the Compliance Date, $750,000 of the Loan principal and all accrued
interest will be forgiven.
2.7 Require the Grantee's attorney to review the loan agreement, promissory note, security
agreement, mortgage, guaranty and/or other documents, if any, considered necessary to
secure the loan to ensure they are valid, binding and enforceable.
3. Reporting
a) Minnesota Investment Fund
1) Submit to the State annual progress reports on forms provided by the State until the
project goals have been met or until the Compliance Date, whichever is later. There
reports must be submitted by January 25t' of each year for the period ending
December 31, for as long as the project remains open.
2) The final report must be submitted no later than 15 days after the Compliance Date.
3) The State, at its discretion, may require the submittal of additional progress reports.
4) Information required in this report includes, but is not limited to the following:
• Permanent jobs created • Hourly base wage • Date of hire
• Job titles • Hourly value of benefits • Benefits
provided
• Project expenditures • Status of project • Status of payments
• Permanent jobs retained
b) Minnesota Business Assistance Form
1) Submit to the MN Department of Employment and Economic Development, Office
of Economic Analysis, no later than April IIt of each year until the project goals have
been met.
4. Keep financial records, including properly executed contracts, invoices, receipts, vouchers, and
other documents sufficient to evidence in proper detail the nature and propriety of the
expenditures made pursuant to this contract. Accounting methods must be in accordance with
generally accepted accounting principles.
5. Complete the project in accordance with the approved budget within the time frames specified in
this Grant Contract.
6. Promptly notify the State of any proposed material change in the scope of the project, budget or
completion date, which must be approved by the State, prior to implementation.
7. Have on file the necessary documentations to show that all project funds have been used for the
items stated in the application.
8
EXHIBIT B
APPROVED BUDGET
Local
Government
Tax
MIF
Bank
Equity
Abatement
Total
Business Acquisition
and Retention of
Employees
$750,000
$696,500,000
$452,375,000
$375,000
$1,150,000,000
TOTAL PROJECT COST
$750,000
$696,500,000
$452,375,000
$375,000
$1,150,000,000
LOAN AGREEMENT
MINNESOTA INVESTMENT FUND
THIS AGREEMENT is made and entered into as the day of2016 by and
between the City of Lakeville (the "Lender") and MOM Brands Company, LLC (the 'Borrower");
WITNESSETH:
WHEREAS, the Lender has applied to the Minnesota Department of Employment and Economic
Development for a Minnesota Investment Fund Grant (the "MIF Grant") pursuant to an application (the
"Grant Application") and received approval for said grant; and
WHEREAS, Grant Contract Number CDAP-15-0012-H-FY16 (the "Grant Contract") between the
Minnesota Department of Employment and Economic Development (the "State") and the Lender has been
executed and requires that the Borrower provide sufficient funds to complete financing and agree to loan
terms with the Lender regarding the MIF Grant; and
WHEREAS, the parties hereto agree to incorporate into this Agreement by reference said Grant
Application and Grant Contract as if fully set forth herein word for word;
NOW THEREFORE, it is agreed by and between the parties hereto as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context:
"Benefit Date" means the date the Borrower closed on the acquisition, which is May 4, 2015.
"Benefit" is defined as one or more of the following: health, dental, life and disability insurance, retirement
program, profit sharing and other non -mandatory benefits paid by the Borrower.
"Compliance Date" means May 4, 2017, which is the date that is two (2) years after the Benefit Date.
"Continued Existence Date" means May 4, 2020, which is the date that is five (5) years after the Benefit
Date.
"Development Property" means the real property located at 20802 Kensington Blvd and 20845
Kenbridge Court, both in Lakeville, MN, and a legal description of this Development Property is attached
to this document as Exhibit D.
"Full -Time Equivalent (FTE)" is the equivalent of one person working 2080 hours or more per year or
the ratio of the total paid hours during a calendar year (permanent part time or full time) to the total of
working hours in that same period (2080 hours per year).
"Full -Time Job" means an employee that is employed 2080 hours per year.
"Grant Contract" means Minnesota Department of Employment and Economic Development Grant
Contract # CDAP-15-0012-H-FY16 and attached as Exhibit A.
"Initial Disbursement Date" means the date of the first disbursement of any Loan Proceeds by the Lender
to the Borrower.
"Jurisdiction" means the city limits of the City of Lakeville.
"Loan" means the funds loaned by the Lender to the Borrower pursuant to this Agreement.
"Loan Proceeds" means the funds disbursed to the Borrower pursuant to this Agreement and any proceeds
thereof.
"MIF" means the Minnesota Investment Fund, Minn. Stat. § 116J.8731 and Minn. Rules Chapter 4300.
"MIF Grant" means the award of funds by the State to the Lender pursuant to the Grant Contract.
"Project" means the Borrower's acquisition of an operating business and existing buildings located on
the Development Property.
"State" means the Minnesota Department of Employment and Economic Development.
"Termination Date" means the date of the final payment made to the Lender.
ARTICLE 2
Financing for Proiect
Section 2.1. Other Project Funds. The Borrower shall commit and show proof of not less than
$452,375,000 of equity for the completion of the Project.
(a) The Other Project Financing described in the Grant Application and Grant Contract must
be used for the same purposes and under the same terms, rates and conditions as specified therein unless
prior written consent is received from the State.
Section 2.2. MIF Loan/Grant. The MIF Grant will be used by the Lender to make a loan to the Borrower
of not more than $750,000 to assist with the retention of employees following the purchase of MOM Brands.
The Borrower's obligations under this Agreement are expressly contingent on the Lender's receipt of funds
from the State in an amount adequate to make the Loan.
ARTICLE 3
MIF Loan Terms and Conditions
Section 3.1. Basic Loan Terms. The principal amount of the Loan shall not exceed $750,000.00. The
Loan shall be forgiven by the Lender and the State upon satisfaction by the Borrower of the terms of this
Agreement. In the event the Loan is not forgiven, the Loan shall be repayable as set forth in Section 7.2
of this Agreement. The Loan terms may not be modified without prior written approval from the State.
2
Section 3.2. Prepayment_ In the event the Loan is not forgiven, prepayment of the Loan may occur at any
time during the Loan repayment period without penalty.
Section 3.3. Assignment. If, prior to the Termination Date, the Borrower sells, conveys, transfers, further
mortgages or encumbers, or disposes of the Development Property, or any part thereof or interest therein,
or enters into an agreement to do any of the foregoing, the Borrower shall immediately repay all amounts
then outstanding on the Loan. This shall be in addition to any other remedies at law or equity available to
the Lender.
Section 3.4. Termination. This Agreement shall automatically terminate without any notice to Borrower:
(1) if no Loan Proceeds have been disbursed to the Borrower prior to the Compliance Date; or (2) if: (a) the
Borrower has not received any disbursement of Loan Proceeds from the Lender; and (b) the Borrower fails
to pay its debts as they become due, makes an assignment for the benefit of its creditors, admits in writing
its inability to pay its debts as they become due, files a petition under any chapter of the Federal Bankruptcy
Code or any similar law, state or federal, now or hereafter existing, becomes "insolvent" as that term is
generally defined under the Federal Bankruptcy Code, files an answer admitting insolvency or inability to
pay its debts as they become due in any involuntary bankruptcy case commenced against it, or fails to obtain
a dismissal of such case within sixty (60) days after its commencement or convert the case from one chapter
of the Federal Bankruptcy Code to another chapter, or is the subject of an order for relief in such bankruptcy
case, or is adjudged a bankrupt or insolvent, or has a custodian, trustee, or receiver appointed for it, or has
any court take jurisdiction of its property, or any part thereof, in any proceeding for the purpose of
reorganization, arrangement, dissolution, or liquidation, and such custodian, trustee, or receiver is not
discharged, or such jurisdiction is not relinquished, vacated, or stayed within sixty (60) days of the
appointment.
Section 3.5. Promissory Note. The Borrower shall execute a promissory note in substantially the form
set forth by the State and attached to this Agreement as Exhibit B.
Section 3.6. Annual Financial Statements. For the term of the loan, upon request of the Lender, the
Borrower shall submit the most recent audited annual consolidated financial statements for Post Holdings,
Inc. prepared in accordance with generally accepted accounting principles. The audited annual consolidated
financial statements for Post Holdings, Inc. shall include a profit and loss statement, balance sheet,
statement of cash flow, notes and an opinion from the accountants of such statements.
Section 3.7. Hazard Insurance. The Borrower shall maintain insurance in adequate amounts.
Section 3.8. Collateral. The Borrower shall furnish a corporate guaranty of the loan from parent Post
Holdings, Inc.
ARTICLE 4
Default
Section 4.1. Default. The Borrower shall be in default under this Agreement upon the happening of any
one or more of the following events:
(a) the Borrower fails to pay when due any amount payable on the Loan and such nonpayment
is not remedied within ten (10) business days after written notice thereof to the Borrower by the Lender;
(b) the Borrower is in breach in any material respect, of any obligation or agreement under this
Agreement (other than nonpayment of any amount payable on the Loan) and remains in breach in any
3
material respect for thirty (30) business days after written notice thereof to the Borrower by the Lender;
provided, however, that if such breach shall reasonably be incapable of being cured within such thirty (30)
business days after notice, and if the Borrower commences and diligently prosecutes the appropriate steps
to cure such breach, no default shall exist so long as the Borrower is proceeding to cure such breach;
(c) if any material covenant, warranty, or representation of the Borrower shall prove to be
untrue in any material respect, provided such covenant, warranty or representation of the Borrower remains
untrue in any material respect for thirty (30) business days after written notice thereof to the Borrower by
the Lender; provided, however, that if such untruth shall reasonably be incapable of being corrected within
such thirty (30) business days after notice, and if the Borrower commences and diligently prosecutes the
appropriate steps to correct such untruth, no default shall exist so long as the Borrower is so proceeding to
correct such untruth;
(d) the Borrower. on or after the Initial Disbursement Date, fails to pay its debts as they become
due, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts as
they become due, files a petition under any chapter of the Federal Bankruptcy Code or any similar law,
state or federal, now or hereafter existing, becomes "insolvent" as that term is generally defined under the
Federal Bankruptcy Code, files an answer admitting insolvency or inability to pay its debts as they become
due in any involuntary bankruptcy case commenced against it, or fails to obtain a dismissal of such case
within sixty (60) days after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in such bankruptcy case, or be
adjudged a bankrupt or insolvent, or has a custodian, trustee, or receiver appointed for it, or has any court
take jurisdiction of its property, or any part thereof, in any proceeding for the purpose of reorganization,
arrangement, dissolution, or liquidation, and such custodian, trustee, or receiver is not discharged, or such
jurisdiction is not relinquished, vacated, or stayed within sixty (60) days of the appointment;
(e) a final judgment is entered against the Borrower that the Lender reasonably deems will
have a material, adverse impact on the Borrower's ability to comply with the Borrower's obligations under
this Agreement;
(f) the Borrower sells, conveys, transfers, encumbers, or otherwise disposes of all or any part
of the Development Property without the prior written approval of the Lender;
(g) the Borrower merges or consolidates with any other non-affiliated entity of Post Holdings,
Inc. without 30 days advance written notice to the Lender;
(h) there is a loss, theft, substantial damage, or destruction of all or any part of the
Development Property that is not remedied to the Lender's satisfaction within sixty (60) business days after
written notice thereof by the Lender to the Borrower; or
(i) the borrower is in breach of the requirements of Section 7, Business Subsidy Agreement,
of this Agreement.
Section 4.2. Remedies Upon Default.
(a) In the event of a default, the Lender shall have the right as its option and without demand
or notice, to declare all or any part of the Loan immediately due and payable, and in addition to the rights
and remedies granted hereby, the Lender shall have all of the rights and remedies available under the
Uniform Commercial Code and any other applicable law.
(b) The Borrower agrees in the event of a default to make the collateral available to the Lender.
4
The Borrower agrees to pay the costs and expenses incurred by the Lender in enforcing its rights under this
Agreement, including but not limited to the Lender's attorney's fees. If any notice of sale, disposition or
other intended action by the Lender is required by law to be given to the Borrower, such notice shall be
deemed reasonably and properly given if mailed to the Borrower at the Development Property or at such
other address of the Borrower as may be shown herein, at least fifteen (15) days before such sale, disposition
or other intended action.
ARTICLE 5
Loan Disbursement Provisions
Section 5.1. Payment Requisition Documentation and Format. Loan disbursements shall be for
assisting with the acquisition of MOM Brands and the retention of its employees, and shall not exceed
$750,000. The Lender will disburse the Loan funds upon receipt and approval by the Lender and the State
of the following documentation:
(a) This Agreement fully executed;
(b) Promissory note;
(c) Proof of a security position via a corporate guaranty of the loan from parent Post Holdings,
Inc.
(d) Evidence of equity injection in the amount of $452,375,000.
(e) Documentation of total project costs.
(f) Proof of financing in the amount of $696,500,000.
Upon receipt of such information, the Loan will be disbursed in a lump sum.
Section 5.2. Adverse Changes. The State will not authorize disbursement of funds if there has been any
adverse change in the Borrower's financial condition, organization, operations or their ability to repay the
project financing.
ARTICLE 6
Provision of Monitoring Information Related To Project Progress
Section 6.1. Provision of Progress Information. The Borrower shall provide to the Lender information
for incorporation into the Minnesota Investment Fund progress reports, as required by the State and as
needed by the Lender, to monitor the Project for compliance with State and Lender guidelines. This
information must be provided until the project goals have been met or until the Compliance Date, whichever
is later. At the discretion of the State or Lender additional reporting may be required. This information
must be submitted to the Lender no later than:
(a) January 10, 2016 for the period ending December 31, 2015;
(b) January 10, 2017 for the period ending December 31, 2016; and
(c) June 10, 2017 for the period ending June 1, 2017.
Section 6.2 Documentation to be provided to the Lender.
(a) Project status and the status of payments.
(b) Use of Funds. The Borrower must provide to the Lender invoices, sworn construction
statements, and or any other information to document that the Loan and the Other Project Funds have been
used for the items and purposes as approved by the State.
5
(c) Job Retention Documentation. The Borrower shall provide to the Lender information on
the retention and hiring of each new permanent, non -contract, full time employee on forms provided by the
Lender. This information must include:
(1) Permanent jobs retained;
(2) Job title of each retained and new employee;
(3) Date of hire of each retained and new employee;
(4) Hourly base wage paid;
(5) Hourly value of benefits paid;
(6) List of benefits provided.
ARTICLE 7
Business Subsidy Agreement
Section 7.1. Business Subsidy Agreement. The provisions of this Section constitute the "Business
Subsidy Agreement" for purposes of the Minnesota Business Subsidy Act (Minnesota Statutes Sections
116J.993-995 and its successor statute.)
(a) The Borrower acknowledges and agrees that the provisions of Minnesota's Business
Subsidy Act apply to this Agreement, as Borrower is receiving under the terms of this Agreement
government assistance.
(1) The subsidy provided to the Borrower includes the $750,000 Loan made hereunder
which will be used to assist with the retention of employees following the purchase of MOM
Brands.
(2) The public purposes and goals of the subsidy are to maintain net jobs in the City.
(3) The goals for the subsidy are to maintain jobs that pay a livable wage, per Section
7.1(b) of this Agreement.
(4) If the goals are not satisfied, the Borrower shall make payment to the Lender as
required in Section 7.2 of this Agreement.
(5) The subsidy is needed because the cost of acquisition makes the Project
economically infeasible without the Loan.
(6) The Borrower must continue operations in the jurisdiction through the Continued
Existence Date.
(7) The Borrower does have a parent corporation: Post Holdings, Inc., a Missouri
Corporation.
(8) In addition to the assistance provided under this Agreement, The Borrower has
received or expects to receive as part of this project, the following financial assistance from other
"grantors" as defined in the Business Subsidy Act: Tax Abatement from the City of Lakeville.
(b) By no later than the Compliance Date the Borrower shall meet the following goals
("Goals"):
(1) Retain at least 250 permanent, non -contract, non -seasonal FTE jobs at the
Development Property. The maintained Jobs must provide a compensation of $18.48 per hour
including benefits.
Section 7.2 Default on Business Subsidy Act Requirements.
(a) If the borrower fails to meet the job retention goal and wage level commitment by the
C.
Compliance Date, the Lender may, after holding a public hearing, extend the Compliance Date for one year,
after approval from the State. If after the extension, the Borrower fails to meet the job retention goal and
wage commitment, the borrower will be required to repay to the Lender a pro rata share of the Loan
principal at $3,000 per job not retained, plus interest as defined in Section 7.2 (b).
(b) In an Event of Default arising from a breach by the Borrower of any provision of Section 7.1
of this Agreement, if the implicit price deflator for government consumption expenditures and gross
investment for state and local governments prepared by the Bureau of Economic Analysis of the United
States Department of Commerce for the 12 -month period ending March 31St of the previous year, exceeds
three and one quarter percent (3.25)% on the date of the earliest such Event of Default, the Borrower shall,
in addition to any other payment required hereunder, pay to the Lender the difference between the present
value of the interest actually paid and accrued on the Loan as of the date of the payment required by this
Section 7.2 (b) and (c), and the amount of interest that would have been paid and accrued on the Loan if
the interest rate of the Loan at all times had been equal to the implicit price deflator on the date of the
earliest Event of Default;
Date;
(c) Interest required in Section 7.2 (b) shall commence to accrue as of the Initial Disbursement
(d) The loan term will be Four (4) years; and
(e) Nothing in this Section 7.2 shall be construed to limit the Lender's rights or remedies under
any other provision of this Agreement, and the provisions of Section 7.2 are in addition to any other such
right or remedy the Lender may have available.
Section 7.3 Reporting_ The Borrower shall provide to the Lender information regarding job and wage
goals and results for two years after the Benefit Date or until the goals are met, whichever is later. This
reporting requirement will expire if the goals are met by the Compliance Date. If the goals are not met, the
Borrower must continue to provide information on the loan until the loan is repaid. The information must
be filed on the Non-JOBZ Minnesota Business Assistance form as found on the MN Department of
Employment and Economic Development website:
http://mn.gov/deed/govern nent/business-subsidesport-forms/index.jsp
This information must be provided to the Lender no later than March 1 of each year for the previous year.
If the Borrower does not submit the report, the Lender shall mail the Borrower a warning within one week
of the required filing date. If, after 14 days of the postmarked date of the warning, the Borrower fails to
provide a report, the Borrower must pay to the Lender a penalty of $100 for each subsequent day until the
report is filed. The maximum penalty shall not exceed $1,000.
This report is in addition to the report discussed in Section 6 of this Agreement.
ARTICLE 8
Job Listing Agreement
Section 8.1 Job Listing Agreement. (Minnesota Statutes Section 116L.66 and any successor statutes.)
When the Loan is for $200,000 or more, the Borrower shall enter into a Job Listing Agreement with the
local Workforce Development Center, MN Department of Employment and Economic Development.
ARTICLE 9
Non-discrimination
Section 9.1. Nondiscrimination on Account of Race, Creed, or Color. The provisions of Minnesota
Statutes, Section IS 1.59 and any successor statutes, which relate to civil rights and discrimination, shall be
considered a part of this Agreement as though wholly set forth herein and the Borrower shall comply with
each such provision throughout the term of this Agreement
ARTICLE 10
Borrower's Acknowledgments Representation, and Warranties
Section 10.1. Acknowledgments.
(a) The Borrower acknowledges that the Lender, in order to obtain funds for part of the Borrower's
activities in connection with the Project, has applied for the MIF Grant to the State under the Minnesota
Investment Fund Program, Business and Community Development Division, and that the Lender has
entered into the Grant Contract with the State, setting forth the terms, conditions, and requirements of the
MIF Grant. The Borrower further acknowledges that it has made certain representations and statements in
the Grant Application concerning its activities relating to the Project, and that the Borrower is designated
and identified under the Grant Contract.
(b) A copy of the Grant Contract and this Agreement shall be on file in the offices of the
Lender. In the event any provision of this Agreement relating to the Borrower's obligations hereunder is
inconsistent with the provisions of the Grant Contract relating to the Borrower's activities there under, the
provisions of the Grant Contract shall prevail.
(c) The Borrower acknowledges that nothing contained in the Grant Contract or this
Agreement, nor any act of the State or the Lender, shall be deemed or construed to create between the State
and the Borrower (or, except as Borrower and Lender between the Lender and the Borrower) any
relationship, including but not limited to that of third -party beneficiary, principal and agent, limited or
general partnership, or joint venture.
Section 10.2. Representations and Warranties. The Borrower warrants and represents, in connection
with the MIF Grant and for the benefit of the State and the Lender, that:
(a) Representations, statements, and other matters provided by the Borrower relating to those
activities of the Project to be completed by the Borrower, which were contained in the Grant Application,
were true and complete in all material respects as of the date of submission to the Lender and that such
representations, statements, and other matters are true as of the date of this Agreement and that there are no
adverse material changes in the financial condition of the Borrower's business.
(b) To the best of the Borrower's knowledge, no member, officer, or employee of the Lender,
or its officers, employees, designees, or agents, no consultant, member of the governing body of the Lender,
and no other public official of the Lender, who exercises or has exercised any functions or responsibilities
with respect to the Project during his or her tenure shall have any interest, direct or indirect, in any contract
or subcontract, or the proceeds thereof, for work to be performed in connection with the Project or in any
activity, or benefit there from, which is part of the Project.
(c) The Borrower acknowledges that the State, in selecting the Lender as recipient of the Grant,
relied in material part upon the assured completion of the Project to be carried out by the Borrower, and the
Borrower warrants that said Project will be carried out as promised.
0
(d) The Borrower warrants that to the best of its knowledge, it has obtained all federal, state,
and local governmental approvals, reviews, and permits required by law to be obtained in connection with
the Project and has undertaken and completed all actions necessary for it to lawfully execute this Agreement
as binding upon it.
(e) The Borrower warrants that it shall keep and maintain books, records, and other documents
relating directly to the Leveraged Funds, and that any duly authorized representative of the State shall, at
all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books,
records, and other documents of the Borrower until such time that the Lender and the State have both
determined that all issues, requirements, and close-out procedures relating to or arising out of the MIF Grant
have been settled and completed.
(f) The Borrower warrants that no transfer of any or all of the Loan Proceeds by the Lender to
the Borrower shall be or be deemed an assignment of Loan Proceeds, and the Borrower shall neither succeed
to any rights, benefits, or advantages of the Lender under the Grant Contract, nor attain any right, privileges,
authorities, or interest in or under the Grant Contract.
(g) The Borrower warrants that it has fully complied with all applicable local, state, and
federal laws pertaining to its business and will continue such compliance throughout the terms of this
Agreement. If at any time notice of noncompliance is received by the Borrower, the Borrower agrees to
take any necessary action to comply with the local, state, or federal law in question.
ARTICLE 11
Other Special Conditions
Section 11.1. Project Time Frame. The time frame outlined in the Grant Application and Grant Contract
pertaining to the Project shall be met by the Borrower.
Section 11.2. Prevailing Wage.
(a) If the Borrower is awarded $500,000 or more of loan proceeds and the Loan is used for
construction, installation (including the Equipment), remodeling and or repairs, the Borrower shall fully
and completely comply with all applicable prevailing wage requirements contained in Minn. Statutes §
116J.871 and § 177.42, subd. 6. The Borrower shall maintain or provide access to all documentation
necessary to establish that the required prevailing wage was paid and shall allow the Lender, the
Commissioner of the Department of Labor and Industry and the State reasonable access to such data.
(b) Penalty.
It is a misdemeanor for the Borrower, who has certified that prevailing wages will be paid to laborers and
mechanics to subsequently fail to pay the prevailing wage. Each day a violation of this subdivision
continues is a separate offense.
Section 11.3. Surety Deposits Required for Construction Contracts. If the Loan is used for
construction, and the Borrower is hiring, contracting, or having a contract with a nonresidential person or
foreign corporation to perform construction work, the Borrower must comply with Minnesota Statutes
290.9705, as amended, by deducting and witholding eight percent of cumulative calendar year payments to
the contractor which exceeds $50,000.
This condition may be waived if (1) the contractor gives the commissioner a cash surety or a bond, secured
by an insurance company licensed by Minnesota, conditioned that the contractor will comply with all
9
applicable provisions of this chapter and chapter 297A, or (2) the contractor has done construction work in
Minnesota at any time during the three calendar years prior to entering the contract and has fully complied
with all provisions of this chapter and chapter 297A for the three prior years.
Section 11.4. Workers Compensation Insurance. The Borrower has obtained workers compensation
insurance as required by Minnesota Statutes, Section 176.181, subd. 2. The Borrower's workers
compensation insurance information is as follows:
(a) Company Name: Liberty Mutual
(b) Policy Number: WA7-64D-444457-025 and WC7-641444457-015 (WI)
(c) Local Agent: Lockton Companies, Attn: Amanda Pocius, Three City Place, Suite 900,
St. Louis, MO 63141
Section 11.6. Review of Documents. The Borrower shall not be entitled to any disbursement of Loan
Proceeds until the Lender's legal counsel and the State have reviewed and approved this Agreement and the
exhibits attached hereto.
Section 11.7. Effect on Other Agreements. Nothing in this Agreement shall be construed to modify any
term of any other agreement to which the Lender and the Borrower are parties.
Section 11.8. Release and Indemnification Covenants. Except for any breach of the representations and
warranties of the Lender or the negligence or other wrongful act or omission of the following named parties,
the Borrower agrees to protect and defend the Lender and the governing body members, officers, agents,
servants, and employees thereof, now and forever, and further agrees to hold the aforesaid harmless from
any claim, demand, suit, action, or other proceeding whatsoever by any person or entity whatsoever arising
or purportedly arising from the acquisition, construction, installation, ownership, maintenance, and
operation of the Project and the Borrower's activities on the Development Property.
Section 11.9. Modifications. This Agreement may be modified solely through written amendments hereto
executed by the Borrower and the lender and approved by the State.
Section 11.10. Notices and Demands. Any notice, demand, or other communication under this Agreement
by either party to the other shall be sufficiently given or delivered only if it is dispatched by registered or
certified mail, postage prepaid, return receipt requested, or delivered personally:
(a) as to the Lender: City of Lakeville
ATTN: Community & Economic Development Director
20195 Holyoke Road
Lakeville, MN 55044
(b) as to the Borrower: MOM Brands Company, LLC
ATTN: Jill Bollettieri
20802 Kensington Blvd
Lakeville, MN 55044
or at such other address with respect to any party as that party may, from time to time, designate in writing
and forward to the others as provided in this Section 11.10.
10
Section 11.11. Conflict of Interests; Representatives Not Individually Liable.
No employee, officer or agent of the Lender shall participate in the administration of a contract supported
by this loan if a conflict of interest, real or apparent, would be involved. No employee, officer or agent of
the Lender may obtain a financial interest in any agreement with respect to this loan. No employee,
officer, or agent of the Lender shall be personally liable to the Borrower or any successor in interest in the
event of any default or breach by the Lender or for any amount that may become due to the Borrower or
on any obligation or term of this Agreement.
Section 11.12. Binding Effect. The covenants and agreements in this Agreement shall bind and benefit
the heirs, executors, administrators, successors, and assigns of the parties to this Agreement.
Section 11.13. Provisions Not Merged With Deed. None of the provisions of this Agreement are intended
to or shall be merged by reason of any deed transferring any interest in the Development Property and any
such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement.
Section 11.14. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of
this Agreement are inserted only for convenience of reference and shall be disregarded in construing or
interpreting any of its provisions.
Section 11.15. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall constitute one and the same instrument.
Section 11.16. Choice of Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the state of Minnesota without regard to its conflict of laws provisions. Any
disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts
of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts,
whether based on convenience or otherwise.
Section 11.17. Waiver. The failure or delay of any party to take any action or assert any right or remedy,
or the partial exercise by any party of any right or remedy shall not be deemed to be a waiver of such action,
right, or remedy if the circumstances creating such action, right, or remedy continue or repeat.
Section 11.18. Entire Agreement. This Agreement, with the exhibits hereto, constitutes the entire
agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous
agreements, representations, and understandings of the parties pertaining to the subject matter of this
Agreement.
Section 11.19. Separability. Wherever possible, each provision of this Agreement and each related
document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement
or any related document is to any extent found invalid by a court or other governmental entity of competent
jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement or any other related document.
Section 11.20. Immunity. Nothing in this Agreement shall be construed as a waiver by the Lender of any
immunities, defenses, or other limitations on liability to which the Lender is entitled by law, including but
not limited to the maximum monetary limits on liability established by Minnesota Statutes, Chapter 466.
Section 11.21. Publicity and Endorsement.
(a) Publicity. Any publicity regarding the subject matter of this loan contract must identify the
State as the sponsoring agency. For purposes of this provision, publicity includes notices, informational
11
pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Grantee
individually or jointly with others, or any subcontractors, with respect to the program, publications, or
services provided resulting from this grant contract.
(b) Endorsement. The Lender and the Borrower must not claim that the State endorses its products
or services.
[Remainder of page intentionally blank]
12
IN WITNESS WHEREOF, the Lender has caused this Agreement to be duly executed in its
name and behalf and the Borrower has caused this Agreement to be duly executed in its name and behalf
as of the date first above written.
City of Lakeville
By
Its
By
Its
MOM Brands Company, LLCM'
Its
t�f
13
EXHIBIT A
Grant Contract
EXHIBIT B
Promissory Note
EXHIBIT C
Purchase Agreement
EXHIBIT D
Legal Description of Development Property
14
PROMISSORY NOTE
$750,000.00 ,,� U4 __7, 2016
01
MOM Brands Company, LLC, a Minnesota corporation (the "Maker"), for value
received, hereby promises to pay to the City of Lakeville (the "City") or its assigns (the
City and any assigns are hereinafter referred to as the "Holder"), at its designated principal
office or such other place as the Holder may designate in writing, the principal sum of
Seven Hundred Fifty Thousand Dollars and No/100 Dollars ($750,000.00) (the "Loan") or
so much thereof as may be advanced under this Promissory Note (this "Note"), with interest
as hereinafter provided, in any coin or currency which at the time or times of payment is
legal tender for the payment of private debts in the United States of America.
1. a. The Loan shall bear interest at the greater of a rate of three
and a quarter percent (3.25%) per annum or the implicit price deflator
defined in Minnesota Statutes, Section 275.70, Subdivision 2 compounded
semiannually. Interest shall commence to accrue as to the amount of the
Loan disbursed as of the date disbursed in accordance with the Loan
Agreement between the Maker and the Holder of even date herewith (the
"Loan Agreement") evidencing the terms of the loan evidenced by this
Note.
b. Subject to the provisions of Section 7.1 of the Loan Agreement, up
to $750,000.00 of the principal balance of this Note (the "Forgivable
Portion") plus accrued interest shall be forgiven and deemed paid on the
Continued Existence Date (as defined in the Loan Agreement).
C. If the Goals are not met by the Compliance Date (as those terms are
defined in the Loan Agreement) and maintained through the Continued
Existence Date, the Maker agrees to repay all or a part of the principal
amount of this Note on a pro rata basis (as further described in this Section
1(c), the "Recaptured Principal"), plus interest set at the greater of 3.25%
or the implicit price deflator defined in Minnesota Statutes, Section 275.70,
Subdivision 2 ("Recapture Interest"), accruing from and after the date
disbursed, compounded semiannually. Recaptured Principal plus
Recapture Interest thereon shall be repaid not later than 30 days after the
City notifies the Maker of the amount to be repaid pursuant to Section 7.1
of the Loan Agreement. If the Goals are only met in part by the Compliance
Date or are maintained only in part as of the Continued Existence Date, the
Maker will repay a pro rata portion of the principal amount of this Note
(plus Recapture Interest).
d. Except as provided in Section 1(c), no payments shall be due on the
Forgivable Portion; provided, however, accrued interest from the date of
disbursement at the greater of 3.25% or the implicit price deflator defined
I
in Minnesota Statutes, Section 275.70, Subdivision 2 will be added to any
Recaptured Principal due pursuant to Section 1(c).
2. The Maker shall have the right to prepay the principal of this Note, in whole
or in part, without prepayment penalty.
3. This Note is given pursuant to the Loan Agreement and is secured by a
corporate guaranty of parent Post Holdings, Inc., a Missouri corporation. In the event any
such Guaranty is found to be invalid for whatever reason, such invalidity shall constitute
an event of default hereunder.
4. All of the agreements, conditions, covenants, provisions, and stipulations
contained in the Loan Agreement, or any instrument securing this Note are hereby made a
part of this Note to the same extent and with the same force and effect as if they were fully
set forth herein. It is agreed that time is of the essence of this Note. If a default occurs
under the Loan Agreement, or any instrument securing this Note, and continues beyond
any applicable notice and cure periods, the Holder of this Note may at its right and option,
without notice, declare immediately due and payable the principal balance of this Note,
together with any costs of collection including attorney fees incurred by the Holder of this
Note in collecting or enforcing payment hereof, whether suit be brought or not, and all
other sums due hereunder, or under any instrument securing this Note. The Maker agrees
that the Holder of this Note may, without notice to the Maker of this Note and without
affecting the liability of the Maker of this Note, accept additional or substitute security for
this Note, or release any security or any party liable for this Note or extend or renew this
Note.
5. The remedies of the Holder of this Note as provided herein, and in the Loan
Agreement, or any other instrument securing this Note, shall be cumulative and concurrent
and may be pursued singly, successively, or together, and, at the sole discretion of the
Holder of this Note, may be exercised as often as occasion therefore shall occur; and the
failure to exercise any such right or remedy shall in no event be construed as a waiver or
release thereof.
6. The Holder of this Note shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies hereunder unless such waiver is
in writing and signed by the Holder of this Note and then only to the extent specifically set
forth in the writing. A waiver with reference to one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy as to a subsequent event. This
Note may not be amended, modified, or changed except only by an instrument in writing
signed by the party against whom enforcement of any such amendment, modifications, or
change is sought.
7. Any notices hereunder shall be deemed sufficiently given by one party to
the other if in writing and if and when delivered or tendred either in person or by depositing
it in the United States mail in a sealed envelope, by certified mail, return receipt requested,
with postage and postal charges prepaid, addressed as follows:
2
If to Maker: MOM Brands Company, LLC
ATTN: Jill Bollettieri
20802 Kensington Blvd
Lakeville, MN 55044
If to Holder: The City of Lakeville
Attn: Community & Economic Development
Director
20195 Holyoke Avenue
Lakeville, MN 55044
or to such other address as the party addressed shall have previously designated by notice
given in accordance with this Section. Notices shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be given, or on
the third day after mailing if mailed as provided above, provided, that a notice not given as
above shall, if it is in writing, be deemed given if and when actually received by a party.
8. The execution and delivery of this Note by Maker to Holder, and the
performance of the covenants and obligations under it have been duly authorized by all
necessary corporate action. Holder shall receive copies of all resolutions pertaining to that
authorization, certified by the secretary of the corporation.
9. Presentment, notice of dishonor and protest are hereby waived by all
makers, sureties, guarantors and endorsers hereof. The Note shall be the joint and several
Vobligation of all makers, sureties, guarantors and endorses and shall be binding upon them,
their heirs, personal representatives, successors and assigns.
THE MAKER HEREY WAIVES ANY RIGHT TO A TRIAL BY JURY UNDER
ANY ACTION OR PROCEEDING ARISING DIRECTLY OR INDIRECTLY OUT
OF THIS NOTE.
10. This Note shall be governed by and construed in accordance with the laws
of the state of Minnesota without regard to its conflict of laws provisions. Any disputes,
controversies, or claims arising out of this Note shall be heard in the state or federal courts
of Minnesota, and all parties to this Note waive any objection to the jurisdiction of these
courts, whether based on convenience or otherwise.
11. The headings used in this Note are solely for convenience of reference, are
no part of this Note, and are not to be considered in construing or interpreting this Note.
12. This Note, with the other Loan Documents, constitutes the entire Note
between the parties pertaining to its subject matter and it supercedes all prior
contemporaneous Notes, representations, and understandings of the parties pertaining to
the subject matter of this Note.
13. Wherever possible, each provision of this Note, the Loan Agreement and
each related document shall be interpreted so that it is valid under applicable law. If any
provision of this Agreement or any related document is to any extent found invalid by a
court or other governmental entity of competent jurisdiction, that provision shall be
ineffective only to the extent of such invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note or any other related document.
14. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and
things required to exist, happen, and be performed precedent to or in the issuance of this
Note do exist, have happened, and have been performed in regular and due form as required
by law.
[Signature page follows.]
C!
IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed as
of the day of 2016.
By
Its
S-1
GUARANTY
of
Post Holdings, Inc.
In order to induce the City of Lakeville (the "Lender"), to extend credit or other financial
accommodations to MOM Brands Company, LLC, a Minnesota corporation (the "Borrower"), in
an original principal amount of $750,000.00 (the "Loan"), and as evidenced by the Promissory
Note (the "Note") executed by the Borrower in the original principal amount of $750,000.00
payable to the order of the Lender, the undersigned (the "Guarantor") hereby:
1. Unconditionally and absolutely guarantees to the Lender:
(a) The full and prompt payment when due, whether at the maturity date specified in
the Note or earlier upon acceleration of maturity pursuant to the provisions thereof, of
principal, interest, and late charges, if any, specified in the Note and any and all renewals
thereof including notes taken in substitution therefore; and,
(b) The payment and performance by the Borrower and any accommodating parties
of their obligations under and pursuant to the Loan and any and all documents related
thereto, including specifically, but not by way of limitation, the Minnesota Investment
Fund Loan Agreement between the Lender and Borrower dated February 4, 2016 (the
"Loan Agreement").
(The Note and such other liability, indebtedness and obligations, are hereinafter collectively
referred to as the "Obligations"); together with the full and prompt payment of any and all of
Lender's fees, costs and expenses of and incidental to the enforcement of the Obligations, and the
enforcement of this Guaranty, including, without limitation, reasonable attorneys' fees, plus
interest thereon at the greater of 3.25% per annum compounded semi-annually based upon a 365
day year or the highest rate authorized by law.
2. Agrees that the Lender may demand payment from the Guarantor of any installment (or
portion thereof) of principal or interest on the Loan, when due, and the Guarantor shall
immediately pay the same to the Lender, and the Lender may demand payment or performance
of any or all of the Obligations, when such payment or performance is due or required, and the
Guarantor shall immediately pay or perform the same, whether or not the Lender has
commenced repossession of any or all collateral or security, or foreclosure of any security
interest, mortgage or other lien in or on any of such collateral and security, or otherwise
exercised its rights and remedies hereunder or under the Loan, the documents related thereto, or
applicable law.
3. Waives (i) presentment, demand, notice of non-payment, protest and notice of protest and
dishonor on the Obligations, (ii) notice of acceptance of this Guaranty by the Lender, and, (iii)
notice of the creation or incurrence of the Obligations by the Borrower.
4. Grants to Lender, in Lender's sole discretion and without notice to the Guarantor, which
notice is hereby waived by the Guarantor, and subject only to the provisions of any agreement
between the Debtor or any other party and Lender at the time in force, the following powers:
1
(a) To modify or otherwise change any terms of all or any part of the Obligations or
the rate of interest thereon, (but not to increase the principal amount of the Note), to grant
any extension or renewal thereof and any other indulgence with respect thereto, and to
effect any release, comprise or settlement with respect thereto;
(b) To enter into any agreement of forbearance with respect to all or any part of the
Obligations, or with respect to all or any part of the collateral or security, and to change the
terms of any such agreement;
(c) To forbear from calling for additional collateral or security, or to secure any
obligation comprised in any collateral pledged to secure repayment of the Obligations;
(d) To consent to the substitution, exchange, or release of all or any part of the
collateral or security, whether or not any such collateral or security received by the Lender
upon any such substitution, exchange, or release shall be of the same or of a different
character or value than the collateral or security surrendered by Lender; and
(e) In the event of nonpayment when due, whether by acceleration or otherwise, of
any of the Obligations, or in the event of default in the performance of any obligation
comprised in the collateral or security, to realize on such collateral or any part thereof, as a
whole or in such parcels or subdivided interest as the Lender may elect, at any public or
private sale or sales, for cash or on credit or for future delivery, without demand,
advertisement of notice of the time or place of sale or any adjournment thereof (the
Guarantor hereby waiving any such demand, advertisement and notice to the extent
permitted by law), or by foreclosure or otherwise, or to forbear from realizing thereon, all
as Lender in its sole and uncontrolled discretion may deem proper, and to purchase all or
any part of such collateral or security for its own account at any such sale or foreclosure,
such powers to be exercised only to the extent permitted by law.
5. Agrees that the Lender shall not be required to first resort for payment to the Borrower or
any other person, corporation or entity, or their properties or estates, or any collateral or security,
or other rights or remedies whatsoever, prior to enforcing this Guaranty.
6. Agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional
guaranty without regard to (i) the validity, regularity or enforceability of the Obligations, or the
disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Borrower, or
(ii) any event or any conduct or action of the Borrower, the Lender, or any other party which
might otherwise constitute a legal or equitable discharge of a surety or guarantor but for this
provision.
7. Agrees that this Guaranty shall remain in full force and effect and be binding upon the
Guarantor until the Obligations are paid in full or otherwise forgiven as provided in the Note and
Loan Agreement.
8. Agrees that no act, omission or thing, except full payment and discharge of the
Obligations, which but for this provision could act as a release or impairment of the liability of
the Guarantor, or any of them shall relieve Guarantor of its liability under this Guaranty, and the
Guarantor waives any and all defenses of the Borrower pertaining to the Obligations, any
2
evidence thereof, and any collateral or security therefore, except the defense of discharge by
payment in full.
9. Agrees that the Lender is expressly authorized to forward or deliver any or all collateral
or security which may at any time be placed with it by the Borrower, the Guarantor, or any other
person, directly to the Borrower for collection and remittance or for credit, or to collect the same
in any other manner and to renew, extend, compromise, exchange, release, surrender or modify
the installments of, any or all of such collateral or security with or without consideration and
without notice to the Guarantor, and without in any manner affecting the absolute liability of the
Guarantor hereunder. Further that the liability of the Guarantor hereunder shall not be affected
or impaired by the failure, neglect or omission on the part of the Lender to realize upon the
Obligations, or upon any collateral or security therefore, nor by the taking by the Lender of any
other guaranty or guaranties to secure the Obligations or any other indebtedness of the Borrower
to the Lender, nor by the taking by the Lender of collateral or security of any kind, nor by any act
or failure to act whatsoever which, but for this provision, might or could in law or in equity act to
release or reduce the Guarantor's liability hereunder.
10. Guarantor's obligations hereunder, and the rights of Lender in the collateral or security,
shall not be released, discharged or in any way affected, nor shall the Guarantor have any rights
or recourse against Lender, by reason of the fact that (i) any of such collateral or security may be
in default at the time of acceptance thereof by Lender or later, (ii) a valid lien in any of such
collateral or security may not be conveyed to, or created in favor of, Lender, (iii) any of such
collateral or security may be subject to equities or defenses or claims in favor of others, or may
be invalid or defective in any way, (iv) any of the Obligations may be invalid for any reason
whatsoever, (v) the value of any of such collateral or security, or the financial condition of the
Borrower or of any obligor under or guarantor of any of such collateral or security, may not have
been correctly estimated or may have changed or hereafter change, (vi) there may have been any
deterioration, waste, or loss by fire, theft, otherwise of any of such collateral or security, unless
such deterioration, waste, or loss be caused by the willful act or willful failure to act of the
Lender.
11. Agrees that so long as any portion of the Obligations are due and owing, or to become
due and owing, by the Borrower to the Lender, the Guarantor shall not, without the prior written
consent of the Lender, collect or seek to collect from the Borrower the claim, if any, by
subrogation or otherwise, acquired by the Guarantor through payment of any part or all of the
Obligations.
12. Agrees that the liability of the Guarantor hereunder shall not be affected or impaired by
the existence or creation from time to time, with or without notice to the Guarantor which notice
is hereby waived, of indebtedness from the Borrower to the Lender in addition to the
indebtedness evidenced by the Note. The Guarantor hereby consents to the creation or existence
of such additional indebtedness.
13. Agrees that the possession of this instrument of guaranty by the Lender shall be
conclusive evidence of due execution and delivery hereof by the Guarantor.
14. Agrees that this Guaranty shall be binding upon the legal representatives, successors and
assigns of the Guarantor, and shall inure to the benefit of the Lender and its successors, assigns
3
and legal representatives. That, notwithstanding the foregoing, the Guarantor shall have no right
to assign or otherwise transfer its rights and obligations under this Guaranty to any third party
without the prior written consent of the Lender, such consent to not be unreasonably withheld,
and that any such assignment or transfer shall not release or affect the liability of the Guarantor
hereunder in any manner whatsoever.
15. Agrees that the Guarantor may be joined in any action or proceeding commenced against
the Borrower in connection with or based upon the Obligations, and recovery may be had against
the Guarantor in any such action or proceeding or in any independent action or proceeding
against the Guarantor should the Borrower fail to duly and punctually pay any of the principal of
or interest on the Obligations, without any requirement that the Lender first assert, prosecute or
exhaust any remedy or claim against the Borrower or against any collateral or security.
16. Agrees that upon the occurrence at any time of an event of default under either the Note,
or the Loan Agreement, and during the continuance thereof, the Lender shall have the right to set
off any and all amounts due hereunder by the Guarantor to the Lender against any indebtedness
or obligation of the Lender to the Guarantor.
17. Agrees that the Guarantor shall be liable to the Lender for any deficiency remaining after
foreclosure of any mortgage or any security interest granted by the Borrower, the Guarantor or
any third party to the Lender to secure repayment of the Obligations and the subsequent sale by
the Lender of the property subject thereto to a third party (whether at a foreclosure sale or at a
sale thereafter by the Lender in the event the Lender purchases said property at the foreclosure
sale), notwithstanding any provision of applicable law which may prevent the Lender from
obtaining a deficiency judgment against, or otherwise collecting a deficiency judgment from, the
Borrower, including, without limitation, Minn. Stat. § 582.30.
18. Notwithstanding any payment or payments made by the Guarantor hereunder or any
setoff or application of funds of the Guarantor by the Lender, the Guarantor shall not be entitled
to be subrogated to any of the rights of the Lender against the Borrower or any other guarantor or
any collateral, security or guarantee or right of offset held by the Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other guarantor in respect of payments made by the
Guarantor hereunder, until all amounts owing to the Lender by the Borrower on account of the
Obligations are irrevocably paid in full. If any amount shall be paid to the Guarantor on account
of such subrogation rights at any time when all of the Obligations shall not have been irrevocably
paid in full, such amount shall be held by the Guarantor in trust for the Lender, segregated from
other funds of the Guarantor, and shall forthwith upon receipt by the Guarantor be turned over to
the Lender in the exact form received by the Guarantor (duly endorsed by the Guarantor to the
Lender if required), to be applied against the Obligations, whether matured or unmatured, in such
order as the Lender may determine. Notwithstanding any of the foregoing, to the extent any
right of subrogation which the Guarantor may have pursuant to this Guaranty or otherwise, or
any right of reimbursement or contribution or similar right against the Borrower, any property of
the Borrower or any other guarantor of any of the Obligations would result in the Guarantor
being a "creditor" of the Borrower within the meaning of Section 547 of Title 11 of the United
States Bankruptcy Code as now in effect or hereafter amended, or any comparable provision of
any successor statute, the Guarantor hereby irrevocably waives such right of subrogation,
reimbursement or contribution .
4
19. Agrees that this Guaranty shall be deemed a contract made under and pursuant to the
laws of the State of Minnesota, and shall be governed by and construed under the laws of such
state. That, wherever possible, each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Guaranty, and to such extent the provisions of this Guaranty
shall be severable.
20. Agrees that no failure on the part of the Lender to exercise, and no delay in exercising,
any right or remedy hereunder shall operate as or constitute a waiver thereof, nor shall any single
or partial exercise of any right or remedy hereunder preclude any other or further exercise
thereof, or the exercise of any other right or remedy granted hereby or by any related document
or by law.
21. Waives any and all claims against the Lender and defenses to performance and payment
hereunder relating in any way, directly or indirectly, to the performance of the Lender's
obligations or exercise of any of its rights under the Note and the documents related thereto.
22. Warrants and represents to the Lender as follows:
(a) This Guaranty constitutes the legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms (subject, as to enforceability, to limitations
resulting from bankruptcy, insolvency or other similar laws affecting creditors' rights
generally).
(b) There is no action, suit or proceeding pending or, to the knowledge of the
Guarantor, threatened against or affecting the Guarantor which, if adversely determined,
would have a material adverse effect on the condition (financial or otherwise), properties or
assets of the Guarantor, or which would question the validity of this Guaranty or any
instrument, document or other agreement related hereto or required hereby, or impair the
ability of the Guarantor to perform its obligations hereunder or thereunder.
(c) Guarantor is not in default of any material provision under any material
agreement, instrument, decree or order to which it is a party, or by which it or its property
is bound or affected.
(d) No consent, approval, order or authorization of, or registration, declaration or
filing with, or notice to, any governmental authority or any third party is required in
connection with the execution and delivery of this Guaranty or any of the agreements or
instruments herein mentioned to which the Guarantor is a party, or the carrying out or
performance of any of the transactions required or contemplated hereby or thereby, or, if
required, such consent, approval, order or authorization has been obtained or such
registration, declaration or filing has been accomplished, or such notice has been given
prior to the date hereof.
(e) Guarantor has filed all tax returns required to be filed, and has paid all taxes
shown thereon to be due, including interest and penalties, which are not being contested in
good faith and by appropriate proceedings, and it has no information or knowledge of any
objections to or claims for additional taxes in respect of federal income or excess profits tax
returns for prior years.
23. Agrees that the liability of the Guarantor and any other guarantor of the Obligations shall
be joint and several.
24. Acknowledges, understands, and agrees that if Lender enters into, has entered into, or
will enter into, any form of guaranty with any other lending institution under which it guaranties
a portion of the Obligations, then the Guarantor will not be a coguarantor with the Lender, shall
have no right of contribution with the Lender, shall have no right of contribution against the
Lender, and all liability hereunder shall continue notwithstanding payment by the Lender under
any guaranty to such other lending institution.
25. Agrees that the Guarantor will directly or indirectly benefit by the making of the Loan,
and that the Lender has agreed to make the Loan in reliance upon this Guaranty.
26. Agrees that if, at any time, all or any part of any payment previously applied by the
Lender to any of the Obligations must be returned by the Lender for any reason, whether by
court order, administrative order or settlement, the Guarantor shall remain liable for the full
amount returned as if said amount had never been received by the Lender, notwithstanding any
term of this Guaranty or the cancellation or return of any note or other agreement evidencing the
Obligations.
27. The execution and delivery of this Guaranty by Guarantor to Lender, and the
performance of the covenants and obligations under it have been duly authorized by all necessary
limited liability company action. Lender shall receive copies of all resolutions pertaining to that
authorization, certified by the secretary of the limited liability company.
28. Any notices hereunder shall be deemed sufficiently given by one party to the other if in
writing and if and when delivered or tendered either in person or by depositing it in the United
States mail in a sealed envelope, by certified mail, return receipt requested, with postage and
postal charges prepaid, addressed as follows:
If to Guarantor: Post Holdings, Inc.
Diedre J. Gray
SVP, General Counsel and Chief Administration Officer
2503 S. Hanley Road
St. Louis, MO 63144
If to Lender: City of Lakeville
Director of Community & Economic Development
20195 Holyoke Avenue
Lakeville, MN 55044
2
or to such other address as the party addressed shall previously designated by notice given in
accordance with this Section. Notices shall be deemed to have been duly given on the date of
service if served personally on the parry to whom notice is to be given, or on the third day after
mailing if mailed as provided above, provided, that a notice not given as above shall, if it is in
writing, be deemed given if and when actually received by a party.
29. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
UNDER ANY ACTION OR PROCEEDING ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS GUARANTY.
30. Agrees that all liability hereunder shall continue notwithstanding the incapacity or lack of
authority of any one or more of the managers of Guarantor who sign this Guaranty. The failure
of any other person to sign this Guaranty shall not release or affect the liability of any of the
Guarantor.
31. Consents to the personal jurisdiction of the state and federal courts located in the State of
Minnesota in connection with any controversy related to this Guaranty, waives any argument that
venue in such forums is not convenient, and agrees and consents that any litigation initiated by
either the Borrower, the Guarantor or the Lender relating to and in connection with this Guaranty
shall venue in either the District Court for the County of Dakota State of Minnesota, or the
United States District Court for the District of Minnesota which is located in the City of Saint
Paul, County of Ramsey, State of Minnesota.
32. Agrees to furnish Lender or the holder of the Note, so long as any part of the Obligations
remain unpaid; (i) audited annual consolidated financial statements setting forth, in reasonable
detail, the assets, liabilities, and net worth of the Guarantor.
7
THE UNDERSIGNED entered into and executed this Guaranty on the day and date indicated
immediately below the signature of its officer/manager, noted below:
GUARANTOR:
Post gs Inc.
i
By
D I &r -e J. Gr y
Its SVP, General Counsel and Chief Administration Officer
Executed on February 9, 2016.
STATE OF MISSOURI
COUNTY OF ST. LOUIS
The foregoing City of Lakeville Guaranty was acknowledged before me on February 9,
2016, by Diedre J. Gray, SVP, General Counsel and Chief Administration Officer of Post
Holdings, Inc. on his/her own behalf.
0 -1
't-"a4L- &- NA�-�
Notary Public
Executed on February 9, 2016.
LINDA D. MCCARTHY
Notary Public - State of Missouri
My Commission Expires August 6, 2017
St. Louis County
Commission #13405551
8