THIRD AMENDMENT TO NOTE PURCHASE
AGREEMENT
THIS THIRD
AMENDMENT , dated as of November 6, 2008 (this “
Amendment ”) to that certain Note Purchase Agreement,
dated as of May 27, 2004 (as amended by that certain First
Amendment to Note Purchase Agreement dated as of May 31, 2007
and that certain Second Amendment to Note Purchase Agreement dated
as of October 23, 2008, 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 4.78% Senior Notes due June 1, 2014 in the
aggregate principal amount of $100,000,000 (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 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 (x) 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 (y) (i) no Subsidiary shall
guaranty or otherwise be or become obligated in respect of any
Primary Senior Debt unless such Subsidiary guaranties, or becomes
similarly obligated in respect of, the Notes and (ii) such
Primary Senior Debt (excluding (A) the Smucker LLC Debt and
(B) the
Indebtedness
under the Folgers Bank Credit Agreement but including any
refinancing, extension or replacement of the Indebtedness evidenced
by the Folgers Bank Credit Agreement) 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.
1.2.
Amendment to Schedule B.
Schedule B to
the Existing Note Purchase Agreement is hereby amended by amending
and restating the definition of “Primary Senior Debt”
to read as follows:
“
Primary Senior Debt ” means (a) the Bank
Credit Agreement and (b) any other credit, loan or borrowing
facility or note purchase agreement by the Company or any
Subsidiary providing, in each case, for the incurrence of Senior
Funded Debt in a principal amount equal to or greater than
$120,000,000, in each case under clauses (a) and (b) as
amended, restated, supplemented or otherwise modified and together
with increases, refinancings and replacements thereof; provided
that for purposes of compliance with Section 9.7 only,
“Primary Senior Debt” shall exclude the Folgers Bank
Credit Agreement and the Smucker LLC Debt (but it shall include any
refinancings, extensions or replacements of the Folgers Bank Credit
Agreement and/or the Smucker LLC Debt).”
1.3.
Amendment to Schedule B.
Schedule B to
the Existing Note Purchase Agreement is hereby amended by inserting
the following new definition into such Schedule, in its proper
alphabetical order, to read as follows:
“
Smucker LLC Debt ” means the $200,000,000 in
principal amount of 6.60% Senior Notes issued by Smucker LLC due
November 13, 2009.”
2. NO OTHER
MODIFICATIONS; CONFIRMATION.
All the provisions
of the Notes, and, except as expressly amended, modified and
supplemented hereby, all the provisions of the Existing Note
Purchase Agreement, are and shall remain in full force and effect.
As of the Effective Date (defined below), all references in the
Notes to the “Note Purchase Agreements” shall be
references to the Existing Note Purchase Agreement, as modified by
this Amendment and as hereafter amended, modified or supplemented
in accordance with its terms.
2
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the
Noteholders to execute and deliver this Amendment (which
representations shall survive such execution and delivery), the
Company represents and warrants to the Noteholders that:
(a) all of the
representations and warranties contained in Section 5 of the
Existing Note Purchase Agreement are correct with the same force
and effect as if made by the Company on the date hereof (or, if any
representation or warranty is expressly stated to have been made as
of a specific date, as of such date);
(b) Smucker LLC is
a limited liability company duly organized, validly existing and in
good standing under the laws of the state of Ohio;
(c) this Amendment
and the Guaranty Agreement of Smucker LLC have been duly
authorized, executed and delivered by the Company and Smucker LLC,
respectively, and this Amendment and the Guaranty Agreement of
Smucker LLC each constitute a legal, valid and binding obligation,
contract and agreement of the Company and Smucker LLC,
respectively, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors’ rights
generally;
(d) the Existing
Note Purchase Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligation, contract and agreement of
the Company enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors’ rights
generally;
(e) the execution,
delivery and performance by each of
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