FOURTH AMENDMENT TO NOTE PURCHASE
AGREEMENTS
THIS FOURTH
AMENDMENT , dated as of October 23, 2008 (this “
Amendment ”) to those certain separate Note Purchase
Agreements, each dated as of August 23, 2000 (as amended by
that certain First Amendment to Note Purchase Agreements, dated as
of November 30, 2001, that certain Second Amendment to Note
Purchase Agreements, dated as of May 27, 2004, and that
certain Third Amendment to Note Purchase Agreements, dated as of
May 31, 2007, and as in effect immediately prior to the
effectiveness of this Amendment, collectively, the “
Existing Note Purchase Agreement ”), among The J. M.
Smucker Company, an Ohio corporation (the “ Company
”), and the purchasers signatory thereto (together with their
successors, transferees and assigns, collectively, the “
Noteholders ”) pursuant to which the Company issued to
the Noteholders its (i) 7.70% Series A Senior Notes due
September 1, 2005 in the aggregate principal amount of
$17,000,000, (ii) 7.87% Series B Senior Notes due
September 1, 2007 in the aggregate principal amount of
$33,000,000, and (iii) 7.94% Series C Senior Notes due
September 1, 2010 in the aggregate principal amount of
$10,000,000 (collectively, the “ Notes
”).
A. The
Noteholders are the holders of all of the outstanding
Notes.
B. Capitalized
terms used herein shall have the respective meanings ascribed
thereto in the Existing Note Purchase Agreement unless herein
defined or the context shall otherwise require.
C. The
Company and the Noteholders now desire to amend the Existing Note
Purchase Agreement in the respects, but only in the respects,
hereinafter set forth.
NOW
THEREFORE , for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
1.1.
Amendment to Section 9.7 (Financial Covenant
Standards).
Section 9.7
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 9.7 is hereby inserted in its
place, to read as follows:
9.7 Financial
Covenant Standards.
If at any time and
from time to time on or after the Fourth Amendment Effective Date,
any Primary Senior Debt shall contain (whether on the Fourth
Amendment Effective Date or subsequent thereto as the result of an
amendment or modification thereof) one or more Financial Covenants
that are either not contained in this Agreement or are contained in
this Agreement but are more favorable to the lender or lenders
under such Primary Senior Debt than are the terms of this Agreement
to the holders of the Notes, this Agreement shall, without any
further action on the part of the Company or any of the holders of
the Notes, be deemed to be amended automatically (effective
simultaneously with the effectiveness of such Primary Senior Debt
or
such
modification) to include each such additional or more favorable
Financial Covenant, unless the Required Holders provide written
notice to the Company to the contrary within 30 days after
having received written notice from the Company of the
effectiveness of such additional or more favorable Financial
Covenant (in which event such Financial Covenant shall be deemed
not to have been included in this Agreement at any time). No
modification or amendment of any Primary Senior Debt that results
in any Financial Covenant becoming less restrictive on the Company
shall be effective as a modification, amendment or waiver under
this Agreement. The Company further covenants promptly to execute
and deliver at its expense (including, without limitation, the fees
and expenses of counsel for the holders of the Notes) an amendment
to this Agreement in form and substance satisfactory to the
Required Holders to reflect such additional or more favorable
Financial Covenant, provided that the execution and delivery of
such amendment shall not be a precondition to the effectiveness of
such additional or more favorable Financial Covenant as provided
for in this Section 9.7. The provisions of this
Section 9.7 shall apply successively to each change in a
Financial Covenant contained in any Primary Senior Debt.
“
Financial Covenant ” means any covenant or equivalent
provision (including, without limitation, any default or event of
default provision and definitions of defined terms used therein)
requiring the Company:
(a) to maintain
any level of financial performance (including, without limitation,
a specified level of net worth, total assets, cash flow or net
income),
(b) not to exceed
any maximum level of indebtedness,
(c) to maintain
any relationship of any component of its capital structure to any
other component thereof (including, without limitation, the
relationship of indebtedness, senior indebtedness or subordinated
indebtedness to total capitalization or to net worth),
or
(d) to maintain
any measure of its ability to service its indebtedness (including,
without limitation, falling below any specified ratio of revenues,
cash flow or net income to interest expense, rental expense,
capital expenditures and/or scheduled payments of
indebtedness).
1.2.
Amendment to Section 10.3 (Consolidated Net
Worth).
Section 10.3
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 10.3 is hereby inserted in its
place, to read as follows:
10.3
Consolidated Net Worth.
The Company will
not, at any time, permit Consolidated Net Worth to be less than
(a) prior to the Folgers Acquisition Date, One Billion Dollars
($1,000,000,000) and (b) on and after the Folgers Acquisition
Date, Three Billion Five Hundred Million Dollars
($3,500,000,000).
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1.3.
Amendment to Section 10.4.
Section 10.4
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 10.4 is hereby inserted in its
place, to read as follows:
The Company will
not permit, as of the end of each fiscal quarter, Consolidated Debt
determined as of such date to exceed 55% of the sum of
(a) Consolidated Debt and (b) Consolidated Net Worth,
each determined as of such date.
1.4.
Amendment to Section 10.5 (Incurrence of Current
Debt).
Section 10.5
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 10.5 is hereby inserted in its
place, to read as follows:
10.5
Intentionally Omitted.
1.5.
Amendment to Section 10.6 (Priority Debt).
Section 10.6
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 10.6 is hereby inserted in its
place, to read as follows:
The Company will
not, at any date, permit Priority Debt to exceed (a) prior to
the last day of the fiscal quarter in which the Folgers Acquisition
Date occurs, 25% of Consolidated Total Capitalization (determined
as of the last day of the then most recently ended fiscal quarter
of the Company) and (b) thereafter, 15% of Consolidated Total
Capitalization (determined as of the last day of the then most
recently ended fiscal quarter of the Company or determined as of
such date if such date shall be the last day of a fiscal quarter of
the Company); provided, however, that no Lien created pursuant to
Section 10.7(g) shall secure any Primary Senior Debt unless
the Notes are equally and ratably secured by all property subject
to such Lien and no Subsidiary shall guaranty or otherwise become
obligated in respect of any Primary Senior Debt unless such
Subsidiary guaranties, or becomes similarly obligated in respect
of, the Notes and such Debt is subject to the terms of the
Intercreditor Agreement (or an intercreditor agreement in form and
substance reasonably satisfactory to the Required Holders), in each
case all pursuant to documentation reasonably satisfactory to the
Required Holders; provided, further, however, that notwithstanding
anything contained in this Section 10.6 to the contrary, the
Company shall be under no obligation to (but may in its sole
discretion) require any Foreign Subsidiary to guaranty the Debt
under this Agreement and the Notes to the extent such Foreign
Subsidiary’s obligations under all Primary Senior Debt
consist solely of direct borrowings solely to such Foreign
Subsidiary or a group of Foreign Subsidiaries (a “ Foreign
Borrowing ”) or guaranties of a Foreign Borrowing by
another Foreign Subsidiary.
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1.6.
Amendment to Section 10.7 (Liens)
Section 10.7(g)
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 10.7(g) is hereby inserted in its
place, to read as follows:
(g) other
Liens not otherwise permitted by paragraphs (a) through
(f) of this Section 10.7, so long as the Debt secured
thereby can be
(i) incurred and
remain outstanding in accordance with the requirements of
Section 10.4, and
(ii) incurred and
remain outstanding in accordance with the requirements of
Section 10.6.
1.7.
Amendment to Section 11 (Events of Default).
Section 11(f)
of the Existing Note Purchase Agreement is hereby deleted in its
entirety, and a new Section 11(f) is hereby inserted in its place,
to read as follows:
(f) the
Company or any Significant Subsidiary
(i) is in default
(as principal or as guarantor or other surety) in the payment of
any principal of or premium or Make-Whole Amount or interest on any
Indebtedness (other than Indebtedness under this Agreement and the
Notes) that is outstanding in an aggregate principal amount of at
least $5,000,000 beyond any period of grace provided with respect
thereto (after giving effect to any consents or waivers in respect
thereof); or
(ii) is in default
in the performance of or compliance with any term of any evidence
of any Indebtedness under the Bank Credit Agreement or the Folgers
Bank Credit Agreement or any other Indebtedness with an outstanding
principal amount of at least $40,000,000 individually or, together
with other Indebtedness, with an aggregate principal amount of at
least $75,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a
consequence of such default or condition such Indebtedness has
become, or has been declared (or one or more Persons are entitled
at such time to declare such Indebtedness to be), due and payable
before its stated maturity or before its regularly scheduled dates
of payment; or
(iii) as a
consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the
holder of Indebtedness to convert such Indebtedness into equity
interests), (x) the Company or such Significant Subsidiary has
become obligated to purchase or repay Indebtedness under the Bank
Credit Agreement or the Folgers Bank Credit Agreement or any other
Indebtedness with an outstanding
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