EX-10.2






Exhibit 10.2




FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENTS




     THIS FIFTH AMENDMENT, dated as of November 6, 2008 (this “Amendment”) to those certain
separate Note Purchase Agreements, each dated as of June 16, 1999 (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, that certain Third Amendment to Note Purchase
Agreements dated as of May 31, 2007 and that certain Fourth Amendment to Note Purchase Agreements
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 6.77% Senior Notes due June 1, 2009 in the aggregate principal amount
of $75,000,000 (collectively, the “Notes”).



RECITALS:




     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. AMENDMENTS.




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:



     10.6 Priority Debt.



     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 9.8 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.



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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 the Company and Smucker LLC of
this Amendment, and the Guaranty Agreement of Smucker LLC, respectively, (i) have been duly
authorized by all requisite corporate or limited liability company, as applicable, action
and, if required, shareholder action, (ii) does not require the consent or approval of any
governmental or regulatory body or agency or registration, filing or declaration with, any
Governmental Authority, and (iii) will not (A) violate (1) any provision of law, statute,
rule or regulation or its certificate of incorporation, bylaws or operating agreement, (2)
any order of any court or any rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets are or may be bound,
or (B) result in a breach of or constitute (alone or with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this paragraph (e);




     (f) as of the date hereof, no Default or Event of Default has occurred which is
continuing;




     (g) neither the Company nor any Subsidiary (i) is a Person described or designated in
the Specially Designated Nationals and Blocked Persons List of the Office



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of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (ii) engages
in any dealings or transactions with any such Person; and




     (h) neither the Company nor any Subsidiary is in violation of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001 of the United States of America.



4. EFFECTIVENESS.




     The amendments set forth in this Amendment shall become effective only upon the date of the
satisfaction in full of the following conditions precedent (which date shall be the “Effective
Date”).



4.1. Execution and Delivery of this Amendment.




     The Company shall have delivered to each Noteholder a counterpart hereof, duly executed and
delivered by the Company, Smucker LLC and the Required Holders.



4.2. Representations and Warranties.




     The representations and warranties of the Company made in Section 3 of this Amendment and of
Smucker LLC in the Guaranty Agreement shall remain true and correct in all respects as of the
Effective Date.



4.3. No Injunction, Etc.




     No injunction, writ, restraining order or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority.



4.4. Amendment to 2000 Note Purchase Agreements.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Fifth Amendment to Note Purchase Agreements, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of August 23, 2000, together with each of the other instruments and
agreements executed and/or delivered in connection therewith, each certified as true and correct by
a Responsible Officer.



4.5. Amendment to 2004 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Third Amendment to Note Purchase Agreement, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of May 27, 2004, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, each certified as true and correct by a Responsible
Officer.



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4.6. Amendment to 2007 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Second Amendment to Note Purchase Agreement, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of May 31, 2007, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, each certified as true and correct by a Responsible
Officer.



4.7. Amendment to 2008 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
First Amendment to Note Purchase Agreement, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of October 23, 2008, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, each certified as true and correct by a Responsible
Officer.



4.8. Guaranty of The Folgers Coffee Company.




     The Folgers Coffee Company shall have executed and delivered to the Noteholders a guaranty
agreement in the form attached as Exhibit A hereto.



4.9. Payment of Special Counsel Fees.




     The Company shall have paid on or before the Effective Date the reasonable fees, charges and
disbursements of Bingham McCutchen LLP, the Noteholders’ special counsel, to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day prior to the
Effective Date.



5. EXPENSES.




     Whether or not this Amendment shall become effective, the Company will promptly (and in any
event within thirty (30) days of receiving any statement or invoice therefor) pay all fees,
expenses and costs relating to this Amendment, including, but not limited to, the reasonable fees
of the Noteholders’ special counsel, Bingham McCutchen LLP, incurred in connection with the
preparation, negotiations and delivery of this Amendment and any other documents related thereto.
In addition, the Company will pay all such fees, expenses and costs set forth in any subsequent
statement within 30 days of its receipt thereof. Nothing in this Section 5 shall limit the
Company’s obligations pursuant to Section 15.1 of the Existing Note Purchase Agreement.



6. MISCELLANEOUS.




     6.1. This Amendment constitutes a contract between the Company and the Noteholders for the
uses and purposes hereinabove set forth, and may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement. Each
counterpart may consist of a number of copies hereof, each signed by less than



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all, but together signed by all, of the parties hereto. Delivery of an executed signature
page by facsimile transmission shall be effective as delivery of a manually signed counterpart of
this Amendment.



     6.2. Whenever any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the promises and agreements contained in
this Amendment by or on behalf of the Company and the Noteholders shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so expressed or not.



     6.3. This Amendment constitutes the final written expression of all of the terms hereof and is
a complete and exclusive statement of those terms.



     6.4. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES
OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.



[Remainder of page intentionally left blank. Next page is signature page.]




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     IN WITNESS WHEREOF, the parties hereto have caused the execution of this Amendment by duly
authorized officers of each as of the date hereof.



	 	 	 	 	 	 	 
	 	 	THE J. M. SMUCKER COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark R. Belgya	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark R. Belgya	 	 
	 

	 	Title:
	 	Vice President, CFO and Treasurer
	 	 






	 	 	 	 	 	 	 
	Accepted and Agreed to:	 	 
	 
	 	 	 	 	 	 
	HARTFORD LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Hartford Investment Management Company	 	 
	 	 	Its Agent and Attorney-in-Fact	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Matthew J. Poznar	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Matthew J. Poznar	 	 
	 

	 	Title:
	 	Senior Vice President
	 	 






	 	 	 	 	 	 	 
	PHYSICIANS LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Hartford Investment Management Company,	 	 
	 	 	Its Investment Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Matthew J. Poznar	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Matthew J. Poznar	 	 
	 

	 	Title:
	 	Senior Vice President
	 	 






	 	 	 	 	 
	NATIONWIDE LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mary Beth Cadle
	 	 
	 

	 	 	 	 
	Name:

	 	Mary Beth Cadle	 	 
	Title:

	 	Authorized Signatory	 	 






 









 






	 	 	 	 	 
	NATIONWIDE INDEMNITY COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mary Beth Cadle
	 	 
	 

	 	 	 	 
	Name:

	 	Mary Beth Cadle	 	 
	Title:

	 	Authorized Signatory	 	 
	 
	 	 	 	 
	AMCO INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mary Beth Cadle
	 	 
	 

	 	 	 	 
	Name:

	 	Mary Beth Cadle	 	 
	Title:

	 	Authorized Signatory	 	 
	 
	 	 	 	 
	NATIONWIDE INSURANCE COMPANY OF FLORIDA	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mary Beth Cadle	 	 
	 

	 	 	 	 
	Name:

	 	Mary Beth Cadle	 	 
	Title:

	 	Authorized Signatory
	 	 






	 	 	 	 	 	 	 
	PRUDENTIAL
RETIREMENT INSURANCE
AND ANNUITY COMPANY	 
	 
	 	 	 	 	 	 
	By:	 Prudential Investment Management, Inc.,	 	 
	 	 as investment manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David S. Quackenbush
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David S. Quackenbush	 	 
	 

	 	Title:
	 	Vice President
	 	 






 









 






	 	 	 	 	 	 	 
	MTL INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Prudential Private Placement Investors,	 	 
	 	 	L.P. (as Investment Advisor)	 	 
	 
	 	 	 	 	 	 
	 

	 	By: Prudential Private Placement Investors, Inc.
	 	 
	 

	 	(as
its General Partner)
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David S. Quackenbush	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David S. Quackenbush	 	 
	 

	 	Title:
	 	Vice President	 	 






	 	 	 	 	 
	METLIFE INSURANCE COMPANY OF CONNECTICUT	 	 
	 
	 	 	 	 
	By:

	 	/s/ Judith A. Gulotta
	 	 
	 

	 	 	 	 
	Name:

	 	Judith A. Gulotta	 	 
	Title:

	 	Managing Director	 	 






	 	 	 	 	 	 	 
	EQUITRUST LIFE INSURANCE COMPANY	 	 
	(formerly held by NATIONAL TRAVELERS LIFE COMPANY)	 	 
	 
	 	 	 	 	 	 
	By:	 Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James F. Geiger
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James F. Geiger	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	THE CATHOLIC AID ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	By:	 Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James F. Geiger	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James F. Geiger	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	THE RELIABLE LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James F. Geiger	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James F. Geiger	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	GREAT WESTERN INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James F. Geiger	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James F. Geiger	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	INDUSTRIAL ALLIANCE PACIFIC LIFE INSURANCE COMPANY
	(formerly THE NORTH WEST LIFE ASSURANCE COMPANY OF CANADA)
	 
	 	 	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James F. Geiger	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James F. Geiger	 	 
	 

	 	Title:
	 	Vice President	 	 






	 	 	 	 	 
	MODERN WOODMEN OF AMERICA
	 
	 	 	 	 
	By:

	 	/s/ Douglas A. Pannier	 	 
	 

	 	 	 	 
	Name:

	 	Douglas A. Pannier	 	 
	Title:

	 	Portfolio Manager — Private Placements
	 	 
	 
	 	 	 	 
	NATIONAL GUARDIAN LIFE INSURANCE COMPANY
	 
	 	 	 	 
	By:

	 	/s/ R.A. Mucci	 	 
	 

	 	 	 	 
	Name:

	 	R.A. Mucci	 	 
	Title:

	 	Vice President & Treasurer	 	 






 









 






	 	 	 	 	 	 	 
	PIONEER MUTUAL LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	American United Life Insurance Company (authorized agent)
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kent R. Adams	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kent R. Adams	 	 
	 

	 	Title:
	 	V.P. Fixed Income Securities
	 	 







 









 








GUARANTOR ACKNOWLEDGEMENT




     The undersigned hereby acknowledges and agrees to the terms of the Fifth Amendment to Note
Purchase Agreements, dated as of November 6, 2008 (the “Fifth Amendment”), amending those certain
separate Note Purchase Agreements, each dated as of June 16, 1999, 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, that certain Third Amendment to Note Purchase
Agreements dated as of May 31, 2007 and that certain Fourth Amendment to Note Purchase Agreements
dated as of October 23, 2008 (as amended, the “Note Purchase Agreement”), among The J.M. Smucker
Company, an Ohio corporation, and the holders of Notes party thereto. The undersigned hereby
confirms that the Guaranty Agreement to which the undersigned is a party remains in full force and
effect after giving effect to the Fifth Amendment and continues to be the valid and binding
obligation of the undersigned, enforceable against the undersigned in accordance with its terms,
subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor’s rights generally or by equitable principles.



     Capitalized terms used herein but not defined are used as defined in the Note Purchase
Agreement.



     Dated as of November 6, 2008



	 	 	 	 	 	 	 
	 	 	J.M. SMUCKER LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 







Exhibit A

Form of The Folgers Coffee Company Guaranty Agreement



[omitted]