EX-10.9













Exhibit 10.9



 

 


THE J. M. SMUCKER COMPANY





 






NOTE PURCHASE AGREEMENT





 






Dated as of October 23, 2008




$376,000,000 6.63% Senior Notes Due November 1, 2018

$24,000,000 6.12% Senior Notes Due November 1, 2015



THE HOLDERS OF THE NOTES ISSUED PURSUANT TO THIS AGREEMENT HAVE BEEN REQUESTED, AS A COURTESY, BUT
SHALL HAVE NO OBLIGATION UNDER THIS AGREEMENT, TO PROVIDE THE COMPANY WITH NOTICE OF THEIR
DISCLOSURE OF “CONFIDENTIAL INFORMATION” (AS DEFINED IN THIS AGREEMENT) IN RESPONSE TO ANY SUBPOENA
OR OTHER LEGAL PROCESS OR IN CONNECTION WITH CERTAIN REGULATORY DISCLOSURES.




 

 






 









 












	 	 	 	 	 	 	 	 	 
	1.	 	AUTHORIZATION OF NOTES	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1.	 	Notes	 	 	1	 
	 
	 	1.2.	 	Certain Defined Terms	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	2.	 	SALE AND PURCHASE OF NOTES	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	3.	 	CLOSING	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	4.	 	CONDITIONS TO CLOSING	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1.	 	Representations and Warranties	 	 	2	 
	 
	 	4.2.	 	Performance; No Default	 	 	2	 
	 
	 	4.3.	 	Compliance Certificates	 	 	2	 
	 
	 	4.4.	 	Opinions of Counsel	 	 	3	 
	 
	 	4.5.	 	Purchase Permitted By Applicable Law, etc.	 	 	3	 
	 
	 	4.6.	 	Sale of Other Notes	 	 	3	 
	 
	 	4.7.	 	Payment of Special Counsel Fees	 	 	3	 
	 
	 	4.8.	 	Private Placement Numbers	 	 	4	 
	 
	 	4.9.	 	Changes in Corporate Structure	 	 	4	 
	 
	 	4.10.	 	Subsidiary Guaranty Agreement	 	 	4	 
	 
	 	4.11.	 	Second Amendment and Restatement of Intercreditor Agreement	 	 	4	 
	 
	 	4.12.	 	Proceedings and Documents	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	5.	 	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1.	 	Organization; Power and Authority	 	 	4	 
	 
	 	5.2.	 	Authorization, etc.	 	 	5	 
	 
	 	5.3.	 	Disclosure	 	 	5	 
	 
	 	5.4.	 	Organization and Ownership of Shares of Subsidiaries	 	 	5	 
	 
	 	5.5.	 	Financial Statements	 	 	6	 
	 
	 	5.6.	 	Compliance with Laws, Other Instruments, etc.	 	 	6	 
	 
	 	5.7.	 	Governmental Authorizations, etc.	 	 	7	 
	 
	 	5.8.	 	Litigation; Observance of Statutes and Orders	 	 	7	 
	 
	 	5.9.	 	Taxes	 	 	7	 
	 
	 	5.10.	 	Title to Property; Leases	 	 	7	 
	 
	 	5.11.	 	Licenses, Permits, etc.	 	 	8	 
	 
	 	5.12.	 	Compliance with ERISA	 	 	8	 
	 
	 	5.13.	 	Private Offering by the Company	 	 	9	 
	 
	 	5.14.	 	Use of Proceeds; Margin Regulations	 	 	9	 
	 
	 	5.15.	 	Existing Indebtedness	 	 	9	 
	 
	 	5.16.	 	Foreign Assets Control Regulations, etc.	 	 	10	 
	 
	 	5.17.	 	Status Under Certain Statutes	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	6.	 	REPRESENTATIONS OF THE PURCHASERS	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.1.	 	Purchase for Investment	 	 	10	 
	 
	 	6.2.	 	Source of Funds	 	 	11	 
	 
	 	6.3.	 	Authorization, etc.	 	 	12	 






i









 






	 	 	 	 	 	 	 	 	 
	7.	 	INFORMATION AS TO COMPANY	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1.	 	Financial and Business Information	 	 	13	 
	 
	 	7.2.	 	Officer’s Certificate	 	 	15	 
	 
	 	7.3.	 	Inspection	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	8.	 	PREPAYMENT OF THE NOTES	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1.	 	Required Prepayments; Payment of Notes at Maturity	 	 	16	 
	 
	 	8.2.	 	Optional Prepayments with Make-Whole Amount	 	 	16	 
	 
	 	8.3.	 	Change in Control	 	 	17	 
	 
	 	8.4.	 	Allocation of Partial Prepayments	 	 	19	 
	 
	 	8.5.	 	Maturity; Surrender, etc.	 	 	19	 
	 
	 	8.6.	 	Purchase of Notes	 	 	19	 
	 
	 	8.7.	 	Make-Whole Amount	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	9.	 	AFFIRMATIVE COVENANTS	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.1.	 	Compliance with Law	 	 	21	 
	 
	 	9.2.	 	Insurance	 	 	21	 
	 
	 	9.3.	 	Maintenance of Properties	 	 	21	 
	 
	 	9.4.	 	Payment of Taxes and Claims	 	 	22	 
	 
	 	9.5.	 	Corporate Existence, etc.	 	 	22	 
	 
	 	9.6.	 	Pari Passu Ranking	 	 	22	 
	 
	 	9.7.	 	Financial Covenant Standards	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	10.	 	NEGATIVE COVENANTS	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.1.	 	Transactions with Affiliates	 	 	23	 
	 
	 	10.2.	 	Merger, Consolidation, etc.	 	 	24	 
	 
	 	10.3.	 	Consolidated Net Worth	 	 	24	 
	 
	 	10.4.	 	Leverage Ratio	 	 	24	 
	 
	 	10.5.	 	Priority Debt	 	 	25	 
	 
	 	10.6.	 	Liens	 	 	25	 
	 
	 	10.7.	 	Asset Sales	 	 	27	 
	 
	 	10.8.	 	Sale-and-Leaseback Transactions	 	 	28	 
	 
	 	10.9.	 	Line of Business	 	 	28	 
	 
	 	10.10.	 	Terrorism Sanctions Regulations	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	11.	 	EVENTS OF DEFAULT	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	12.	 	REMEDIES ON DEFAULT, etc.	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.1.	 	Acceleration	 	 	31	 
	 
	 	12.2.	 	Other Remedies	 	 	32	 
	 
	 	12.3.	 	Rescission	 	 	32	 
	 
	 	12.4.	 	No Waivers or Election of Remedies, Expenses, etc.	 	 	32	 
	 
	 	12.5.	 	Notice of Acceleration or Rescission	 	 	33	 






ii









 






	 	 	 	 	 	 	 	 	 
	13.	 	REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 
	 	13.1.	 	Registration of Notes	 	 	33	 
	 
	 	13.2.	 	Transfer and Exchange of Notes	 	 	33	 
	 
	 	13.3.	 	Replacement of Notes	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	14.	 	PAYMENTS ON NOTES	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 
	 	14.1.	 	Place of Payment	 	 	34	 
	 
	 	14.2.	 	Home Office Payment	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	15.	 	EXPENSES, etc.	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.1.	 	Transaction Expenses	 	 	35	 
	 
	 	15.2.	 	Survival	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	16.	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	17.	 	AMENDMENT AND WAIVER	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.1.	 	Requirements	 	 	36	 
	 
	 	17.2.	 	Solicitation of Holders of Notes	 	 	36	 
	 
	 	17.3.	 	Binding Effect, etc.	 	 	37	 
	 
	 	17.4.	 	Notes held by Company, etc.	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	18.	 	NOTICES	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	19.	 	REPRODUCTION OF DOCUMENTS	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	20.	 	CONFIDENTIAL INFORMATION	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	21.	 	MISCELLANEOUS	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.1.	 	Successors and Assigns	 	 	40	 
	 
	 	21.2.	 	Payments Due on Non-Business Days	 	 	40	 
	 
	 	21.3.	 	Severability	 	 	40	 
	 
	 	21.4.	 	Construction	 	 	40	 
	 
	 	21.5.	 	Counterparts	 	 	40	 
	 
	 	21.6.	 	Accounting Terms	 	 	40	 
	 
	 	21.7.	 	Governing Law	 	 	41	 
	 
	 	21.8.	 	Jurisdiction and Process; Waiver of Jury Trial	 	 	41	 






iii









 






Schedules & Exhibits




	 	 	 	 	 	 	 
	Tab
A:

	 	Schedule A
	 	—
	 	Information Relating to Purchasers
	 
	 	 	 	 	 	 
	Tab B:

	 	Schedule B
	 	—
	 	Defined Terms
	 
	 	 	 	 	 	 
	Tab C:

	 	Schedule 4.9
	 	—
	 	Changes in Corporate Structure
	 

	 	Schedule 5.3
	 	—
	 	Disclosure Materials
	 

	 	Schedule 5.4
	 	—
	 	Organization and Ownership of Shares of Subsidiaries
	 

	 	Schedule 5.5
	 	—
	 	Financial Statements
	 

	 	Schedule 5.8
	 	—
	 	Certain Litigation
	 

	 	Schedule 5.11
	 	—
	 	Licenses, Permits, etc.
	 

	 	Schedule 5.14
	 	—
	 	Use of Proceeds
	 

	 	Schedule 5.15
	 	—
	 	Existing Indebtedness
	 
	 	 	 	 	 	 
	Tab D:

	 	Exhibit 1(a)
	 	—
	 	Form of 6.63% Senior Note due November 1, 2018
	 

	 	Exhibit 1(b)
	 	 	 	Form of 6.12% Senior Note due November 1, 2015
	 
	 	 	 	 	 	 
	Tab E:

	 	Exhibit 4.4(a)
	 	—
	 	Form of Opinion of Counsel for the Company and
Smucker LLC
	 
	 	 	 	 	 	 
	Tab F:

	 	Exhibit 4.4(b)
	 	—
	 	Form of Opinion of Special Counsel for the Purchasers
	 
	 	 	 	 	 	 
	Tab G:

	 	Exhibit 4.10
	 	—
	 	Form of Guaranty Agreement
	 
	 	 	 	 	 	 
	Tab H:

	 	Exhibit 5.13
	 	—
	 	Forms of Offeree Letters







iv











 





THE J. M. SMUCKER COMPANY

1 Strawberry Lane

Orrville, Ohio 44667




$376,000,000 6.63% Senior Notes Due November 1, 2018

$24,000,000 6.12% Senior Notes Due November 1, 2015




Dated as of October 23, 2008




To each of the Purchasers listed

in the attached Schedule A (the “Purchasers”):



Ladies and Gentlemen:




          THE J. M. SMUCKER COMPANY, an Ohio corporation (together with its successors and assigns as
permitted hereunder the “Company”), agrees with the Purchasers as follows:





	1.	 	AUTHORIZATION OF NOTES.






	 	1.1.	 	Notes.





          The Company will authorize the issue and sale of (a) $376,000,000 aggregate principal amount
of its 6.63% Senior Notes due November 1, 2018 (the “Ten-Year Notes”) and (b) $24,000,000 aggregate
principal amount of its 6.12% Senior Notes due November 1, 2015 (the “Seven-Year Notes” and,
collectively with the Ten Year Notes, the “Notes,” such term to include any such notes issued in
substitution therefor pursuant to Section 13 of this Agreement). The Notes shall be substantially
in the forms set out in Exhibit 1(a) or Exhibit 1(b), respectively, with such changes therefrom, if
any, as may be approved by the Purchasers and the Company.





	 	1.2.	 	Certain Defined Terms.





          Certain capitalized and other terms used in this Agreement are defined in Schedule B;
references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.





	2.	 	SALE AND PURCHASE OF NOTES.





          Subject to the terms and conditions of this Agreement, the Company will issue and sell to each
Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section
3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the
purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are
several and not joint obligations and no Purchaser shall have any liability to any Person for the
performance or non-performance by any other Purchaser hereunder.




 









 









	3.	 	CLOSING.





          The sale and purchase of the Notes to be purchased by each of the Purchasers shall occur at
the offices of Bingham McCutchen LLP, One State Street, Hartford, Connecticut 06103, at 10:00 a.m.,
local time, at a closing (the “Closing”) on October 23, 2008 or on such other Business Day
thereafter on or prior to October 30, 2008 as may be agreed upon by the Company and the Purchasers.
At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such
Purchaser in the form of a single Note for each Series (or such greater number of Notes for each
Series in denominations of at least $100,000 as such Purchaser may request) dated the date of the
Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery
by such Purchaser to the Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for the account of the
Company to account number 7521841523 at Fifth Third Bank, Cleveland, Ohio, ABA number 042000314,
Attn: The J. M. Smucker Company. If at the Closing the Company shall fail to tender such Notes to
each Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4
shall not have been fulfilled to each Purchaser’s satisfaction, such Purchaser shall, at its
election, be relieved of all further obligations under this Agreement, without thereby waiving any
rights each such Purchaser may have by reason of such failure or such nonfulfillment.





	4.	 	CONDITIONS TO CLOSING.





          Each Purchaser’s obligation to purchase and pay for the Notes to be sold to it at the Closing
is subject to the fulfillment to each such Purchaser’s reasonable satisfaction, prior to or at the
Closing, of the following conditions:





	 	4.1.	 	Representations and Warranties.





          The representations and warranties of the Company in this Agreement shall be correct when made
and at the time of the Closing.





	 	4.2.	 	Performance; No Default.





          Each of the Company and Smucker LLC shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with by it prior to or
at the Closing and after giving effect to the issue and sale of the Notes (and the application of
the proceeds thereof as contemplated by Schedule 5.14) no Default or Event of Default shall have
occurred and be continuing.





	 	4.3.	 	Compliance Certificates.






          (a) Company Officer’s Certificate. The Company shall have delivered to each
Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.




          (b) Company Secretary’s Certificate. The Company shall have delivered to each
Purchaser a certificate certifying as to the resolutions attached thereto and other



2









 







corporate proceedings relating to the authorization, execution and delivery of the
Notes and this Agreement.




          (c) Smucker LLC Secretary’s Certificate. Smucker LLC shall have delivered to
each Purchaser a certificate certifying as to the resolutions attached thereto and other
corporate or other proceedings relating to the authorization, execution and delivery by
Smucker LLC of the Guaranty Agreement delivered by it pursuant to Section 4.10.




	 	4.4.	 	Opinions of Counsel.





          Each Purchaser shall have received opinions in form and substance satisfactory to it, dated
the date of the Closing from





          (a) M. Ann Harlan, General Counsel of the Company and counsel for Smucker LLC in the
form set forth in Exhibit 4.4(a) (and the Company hereby instructs such counsel to deliver
such opinion to each Purchaser), and




          (b) Bingham McCutchen LLP, the Purchasers’ special counsel in connection with such
transactions, in the form set forth in Exhibit 4.4(b).




	 	4.5.	 	Purchase Permitted By Applicable Law, etc.





          On the date of the Closing each Purchaser’s purchase of Notes shall (a) be permitted by the
laws and regulations of each jurisdiction to which it is subject, without recourse to provisions
(such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by
insurance companies without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including, without limitation, Regulation T, U or X of
the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any
tax, penalty or liability under or pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If so requested, each Purchaser shall have
received an Officer’s Certificate from the Company and Smucker LLC certifying as to such matters of
fact as it may reasonably specify to enable such Purchaser to determine whether such purchase is so
permitted.





	 	4.6.	 	Sale of Other Notes.





          Contemporaneously with the Closing the Company shall sell to each Purchaser and each Purchaser
shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.





	 	4.7.	 	Payment of Special Counsel Fees.





          Without limiting the provisions of Section 15.1, the Company shall have paid on or before the
Closing the reasonable fees, charges and disbursements of Bingham McCutchen LLP, the Purchasers’
special counsel referred to in Section 4.4, to the extent reflected in a statement of such counsel
rendered to the Company at least one Business Day prior to the Closing, which statement will
include all accrued fees and disbursements of such counsel, together with an estimate for the
additional fees and disbursements of such counsel necessary to complete the



3









 






Closing and all post-closing matters relating thereto (including, without limitation,
preparation of closing files).





	 	4.8.	 	Private Placement Numbers.





          A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation
with the Securities Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for each Series of the Notes.





	 	4.9.	 	Changes in Corporate Structure.





          Except as specified in Schedule 4.9, neither the Company nor Smucker LLC shall have changed
its jurisdiction of incorporation or been a party to any merger or consolidation and shall not have
succeeded to all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in Schedule 5.5.





	 	4.10.	 	Subsidiary Guaranty Agreement.





          Smucker LLC shall have executed and delivered to the Purchasers a guaranty agreement,
substantially in the form of Exhibit 4.10.





	 	4.11.	 	Second Amendment and Restatement of Intercreditor Agreement.





          The Company shall have delivered to each Purchaser a fully-executed original of a Second
Amended and Restated Intercreditor Agreement, dated as of October 23, 2008, by and among the
Purchasers, the 1999 Noteholders, the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders
and the Agent (each as defined therein) and acknowledged and agreed to by the Company and Smucker
LLC (as the same may be amended, restated, supplemented or otherwise modified and in effect from
time to time, the “Intercreditor Agreement”).





	 	4.12.	 	Proceedings and Documents.





          All corporate and other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall be satisfactory to
each Purchaser and its special counsel, and each Purchaser and its special counsel shall have
received all such counterpart originals or certified or other copies of such documents as such
Purchaser or its counsel may reasonably request.





	5.	 	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.





          The Company represents and warrants to each Purchaser that:





	 	5.1.	 	Organization; Power and Authority.





          The Company and Smucker LLC is a corporation or limited liability company, as applicable, duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or limited liability company and is in
good standing in each jurisdiction in which such qualification is required by



4









 






law, other than those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company and Smucker LLC has the corporate or other organizational power and
authority to own or hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and deliver the Financing
Documents to which it is a party and to perform the provisions thereof.





	 	5.2.	 	Authorization, etc.






          (a) This Agreement and the Notes have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights generally
and (ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).




          (b) The Guaranty Agreement delivered pursuant to Section 4.10 has been duly authorized
by all necessary corporate action on the part of Smucker LLC, and such Guaranty Agreement
constitutes the legal, valid and binding obligation of Smucker LLC enforceable against it in
accordance with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).




	 	5.3.	 	Disclosure.





          Except as disclosed in Schedule 5.3, this Agreement, the documents, certificates or other
writings identified in Schedule 5.3 and the financial statements listed in Schedule 5.5, taken as a
whole, do not contain any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the circumstances under which
they were made. Except as expressly described in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the financial statements listed in
Schedule 5.5, since July 31, 2008, there has been no change in the financial condition, operations,
business or properties of the Company or any of its Subsidiaries except changes that individually
or in the aggregate would not reasonably be expected to have a Material Adverse Effect.





	 	5.4.	 	Organization and Ownership of Shares of Subsidiaries.






          (a) Schedule 5.4 is (except as noted therein) a complete and correct list of the
Company’s Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and each other
Subsidiary.



5









 






          (b) All of the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have
been validly issued, are fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule
5.4).




          (c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity
duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in
good standing in each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own
or hold under lease the properties it purports to own or hold under lease and to transact
the business it transacts and proposes to transact.




	 	5.5.	 	Financial Statements.





          The Company has delivered to each Purchaser copies of the financial statements of the Company
and its Subsidiaries listed on Schedule 5.5. All of said financial statements (including in each
case the related schedules and notes) fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for the respective periods
so specified and have been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case of any interim
financial statements, to normal year-end adjustments). The Company and its Subsidiaries do not
have any Material liabilities that are not disclosed on such financial statements or otherwise
disclosed on Schedule 5.3.





	 	5.6.	 	Compliance with Laws, Other Instruments, etc.





          The execution, delivery and performance by the Company and Smucker LLC of the Financing
Documents to which it is a party will not:





          (a) contravene, result in any breach of, or constitute a default under, or result in
the creation of any Lien in respect of any property of the Company or any Subsidiary under,
any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws (or other comparable organizational document) or any other Material
agreement or instrument to which the Company or any Subsidiary is bound or by which the
Company or any Subsidiary or any of their respective properties may be bound or affected;




          (b) conflict with or result in a breach of any of the terms, conditions or provisions
of any order, judgment, decree, or ruling of any arbitrator or Governmental Authority
applicable to the Company or any Subsidiary; or




          (c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.



6









 






	 	5.7.	 	Governmental Authorizations, etc.





          Except for regular and routine filings with the Securities and Exchange Commission, no
consent, approval or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery or performance by (a)
the Company of this Agreement or the Notes and (b) Smucker LLC of the Guaranty Agreement delivered
by it pursuant to Section 4.10.





	 	5.8.	 	Litigation; Observance of Statutes and Orders.






          (a) Except as disclosed in Schedule 5.8, there are no actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority that, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.




          (b) Neither the Company nor any Subsidiary is in default under any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority or is in violation of
any applicable law, ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or violation, individually
or in the aggregate, would reasonably be expected to have a Material Adverse Effect.




	 	5.9.	 	Taxes.





          The Company and its Subsidiaries have filed all income tax returns that are required to have
been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns
and all other taxes and assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any taxes and assessments
(a) the amount of which is not individually or in the aggregate Material or (b) the amount,
applicability or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended April 30, 2005.





	 	5.10.	 	Title to Property; Leases.





          The Company and its Subsidiaries have good and sufficient title to their respective Material
properties, including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or any Subsidiary
after said date (except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement, except for those defects in title
and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All
Material leases are valid and subsisting and are in full force and effect in all material respects.




7









 









	 	5.11.	 	Licenses, Permits, etc.





          Except as disclosed in Schedule 5.11, the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and
trade names, or rights thereto, that are Material, without known conflict with the rights of
others, except for those conflicts that, individually or in the aggregate, would not have a
Material Adverse Effect.





	 	5.12.	 	Compliance with ERISA.






          (a) The Company and each ERISA Affiliate have operated and administered each Plan in
compliance with all applicable laws except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I
or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has
occurred or exists that would reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to section
401(a)(29) or 412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.




          (b) The present value of the aggregate benefit liabilities under each of the Plans
(other than Multiemployer Plans), determined as of the end of such Plan’s most recently
ended plan year on the basis of the actuarial assumptions specified for funding purposes in
such Plan’s most recent actuarial valuation report, did not exceed the aggregate current
value of the assets of such Plan allocable to such benefit liabilities. The term “benefit
liabilities” has the meaning specified in section 4001 of ERISA and the terms “current
value” and “present value” have the meaning specified in section 3 of ERISA.




          (c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and
are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that individually or in the aggregate are Material.




          (d) The expected postretirement benefit obligation (determined as of the last day of
the Company’s most recently ended fiscal year in accordance with Financial Accounting
Standards Board Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the Company and its
Subsidiaries is, as of April 30, 2008, $41,583,000.




          (e) The execution and delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the prohibitions of section
406 of ERISA or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the first sentence of
this Section 5.12(e) is made in reliance upon and subject to the accuracy of



8









 







each Purchaser’s representation in Section 6.2 as to the Sources to be used to pay the
purchase price of the Notes to be purchased by such Purchaser.




	 	5.13.	 	Private Offering by the Company.





          Neither the Company nor, based solely on the letters of William Blair & Company, L.L.C. and
KeyBanc Capital Markets Inc., each attached hereto as Exhibit 5.13 (collectively, the “Offeree
Letters”), any Person acting on its behalf, has offered the Notes or any similar Securities for
sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated
in respect thereof with, any Person other than the Purchasers and not more than forty (40) other
Institutional Investors (as defined in clause (c) of the definition of such term), each of which
has been offered the Notes at a private sale for investment. Neither the Company nor, based solely
on the Offeree Letters, any Person acting on its behalf has taken, or will take, any action that
would subject the issuance or sale of the Notes to the registration requirements of section 5 of
the Securities Act. William Blair & Company, L.L.C. and KeyBanc Capital Markets Inc. are the only
Persons the Company has authorized to act on its behalf in connection with the matters referred to
in this Section 5.13.





	 	5.14.	 	Use of Proceeds; Margin Regulations.





          The Company will apply the proceeds of the sale of the Notes for the purposes set forth in
Schedule 5.14. None of the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying or trading in any Securities under such
circumstances as to involve the Company in a violation of Regulation U of the Board of Governors of
the Federal Reserve System (12 CFR 221) or a violation of Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have any present intention that margin stock
will constitute more than 5% of the value of such assets. As used in this Section, the terms
“margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said
Regulation U.





	 	5.15.	 	Existing Indebtedness.






          (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list
of all outstanding Indebtedness of the Company and its Subsidiaries as of September 30,
2008, since which date there has been no Material change in the amounts, interest rates,
sinking funds, installment payments or maturities of the Indebtedness of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default and no waiver of default
is currently in effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or condition exists with respect to any
Indebtedness of the Company or any Subsidiary the outstanding principal amount of which
exceeds $15,000,000 that would permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Indebtedness to become due and payable
before its stated maturity or before its regularly scheduled dates of payment.



9









 






          (b) Neither the Company nor Smucker LLC is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Indebtedness of the Company or Smucker
LLC, any agreement relating thereto (other than the Bank Credit Agreement, the 1999 Note
Agreement, the 2000 Note Agreement, the 2004 Note Agreement, and the 2007 Note Agreement) or
any other agreement (including, but not limited to, its charter or other organizational
document) which limits the amount of, or otherwise imposes restrictions on the incurring of,
Indebtedness of the Company, except as specifically indicated in Schedule 5.15.




	 	5.16.	 	Foreign Assets Control Regulations, etc.






          (a) Neither the sale of the Notes by the Company hereunder nor its use of the proceeds
thereof will violate the (a) Trading with the Enemy Act, as amended, or (b) any of the
foreign assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended). Without limiting the foregoing, neither the Company nor
any Subsidiary (a) is or will become a blocked Person described by section 1 of Executive
Order 13224 of September 24, 2001, Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (31 CFR Part 595 et seq.) or
(b) to the knowledge of the Company, engages or will engage in any dealings or transactions,
or is otherwise associated, with any such Person.




          (b) 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 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.




          (c) No part of the proceeds from the sale of the Notes hereunder will be used, directly
or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended, assuming in all cases that such Act applies to the Company.




	 	5.17.	 	Status Under Certain Statutes.





          Neither the Company nor any Subsidiary is (a) subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as amended, or the
Federal Power Act, as amended, or (b) in violation of the USA Patriot Act.





	6.	 	REPRESENTATIONS OF THE PURCHASERS.






	 	6.1.	 	Purchase for Investment.





          Each Purchaser severally represents that it is purchasing the Notes for its own account or for
one or more separate accounts maintained by such Purchaser or for the account of one or more
pension or trust funds and not with a view to the distribution thereof, provided that the
disposition of such Purchaser’s property shall at all times be within such Purchaser’s control.
Each Purchaser understands that the Notes have not been registered under the Securities Act and
that the Company is not required to register the Notes. Each Purchaser severally represents and



10









 






agrees that it will not resell any Notes unless such Notes are registered pursuant to the
provisions of the Securities Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required by law. By the
resale of any Note, the seller thereof, and by the acceptance of any Note, the purchaser thereof,
shall be deemed to have represented to the Company that such Note has not been sold in violation of
the Securities Act.





	 	6.2.	 	Source of Funds.





          Each Purchaser severally represents that at least one of the following statements is an
accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay
the purchase price of the Notes to be purchased by such Purchaser hereunder:





          (a) Insurance Company General Account —  the Source is an “insurance company
general account” (as defined in PTE 95-60 (60 FR 35925, issued July 12, 1995) and in respect
thereof each Purchaser represents that there is no “employee benefit plan” (as defined in
section 3(3) of ERISA and section 4975(e)(1) of the Code, treating as a single plan all
plans maintained by the same employer (and affiliates thereof as defined in section V(a)(1)
of PTE 95-60) or employee organization or affiliate thereof) with respect to which the
amount of the general account reserves and liabilities of all contracts held by or on behalf
of such plan exceeds 10% of the total reserves and liabilities of such general account as
determined under PTE 95-60 (exclusive of separate account liabilities) plus surplus, as set
forth in the National Association of Insurance Commissioners’ Annual Statement filed with
such Purchaser’s state of domicile and that such acquisition is eligible for and satisfies
the other requirements of such exemption; or




          (b) Separate Account —  the Source is a separate account:




     (i) 10% Pooled Separate Account — that is an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), and to the extent
that there is any employee benefit plan, or group of plans maintained by the same
employer or employee organization, whose assets in such separate account exceed ten
percent (10%) of the assets of such separate account, each Purchaser has disclosed
the names of such plans to the Company in writing; or




     (ii) Identified Plan Assets — that is comprised of employee benefit plans
identified by each Purchaser in writing and with respect to which the Company hereby
warrants and represents that, as of the date of Closing, neither the Company nor any
ERISA Affiliate is a “party in interest” (as defined in section 3 of ERISA) or a
“disqualified person” (as defined in section 4975 of the Code) with respect to any
plan so identified; or




     (iii) Guarantied Separate Account — that is maintained solely in connection
with such Purchaser’s fixed contractual obligations, under which any amounts
payable, or credited, to any employee benefit plan having an interest in such
account and to any participant or beneficiary of such plan (including an



11









 







annuitant) are not affected in any manner by the investment performance of the
separate account (as provided by 29 CFR §2510.3-101(h)(1)(iii)); or




          (c) QPAM Funds —  the Source constitutes assets of an “investment fund”
(within the meaning of part V of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified
professional asset manager” or “QPAM” (within the meaning of part V of the QPAM Exemption),
no employee benefit plan’s assets that are included in such investment fund, when combined
with the assets of all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such QPAM, exceed twenty
percent (20%) of the total client assets managed by such QPAM, the conditions of parts I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of “control” in section V(e) of the QPAM
Exemption) owns a five percent (5%) or more interest in the Company and:




     (i) the identity of such QPAM and




     (ii) the names of all employee benefit plans whose assets are included in such
investment fund;




have been disclosed to the Company in writing pursuant to this Section 6.2(c); or




          (d) Governmental Plans — the Source is a governmental plan; or




          (e) Identified Plans or Funds — the Source is one or more employee benefit
plans, or a separate account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Company in writing pursuant to this Section 6.2(e);
or




          (f) Exempt Plans — the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.


As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan” and “separate
account” shall have the respective meanings assigned to such terms in section 3 of ERISA.





	 	6.3.	 	Authorization, etc.





          Each Purchaser represents that this Agreement has been duly authorized by all necessary
corporate action on such Purchaser’s part, and that this Agreement constitutes a legal, valid and
binding obligation upon such Purchaser in accordance with its terms, except as limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (b) general principles of equity (regardless of
whether considered in a proceeding in equity or at law).




12









 









	7.	 	INFORMATION AS TO COMPANY.






	 	7.1.	 	Financial and Business Information.





          The Company shall deliver to each holder of Notes that is an Institutional Investor:





          (a) Quarterly Statements — within 90 days (or within 10 days after such
earlier date as the Company’s quarterly report is required to be filed with the Securities
and Exchange Commission under the Exchange Act, with written notice of such earlier filing
to be delivered to each holder of Notes simultaneously with such filing) after the end of
each quarterly fiscal period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of,




     (i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and




     (ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year ending with such
quarter,




setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery within the time period
specified above of copies of the Company’s Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section 7.1(a), and
provided, further, that the Company shall be deemed to have made such delivery of such Form
10 Q if it shall have timely made such Form 10 Q available on “EDGAR” and on its home page
on the worldwide web (at the date of this Agreement located at: http//www.smucker.com) and
shall have given such holder prior notice of such availability on EDGAR and on its home page
in connection with each delivery (such availability and notice thereof being referred to as
“Electronic Delivery”);




          (b) Annual Statements — within 120 days (or within 10 days after such earlier
date as the Company’s annual report is required to be filed with the U.S. Securities and
Exchange Commission under the Exchange Act, with written notice of such earlier filing to be
delivered to each holder of Notes simultaneously with such filing) after the end of each
fiscal year of the Company, duplicate copies of,




     (i) a consolidated balance sheet of the Company and its Subsidiaries, as at the
end of such year, and




     (ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such year,



13









 






setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion
thereon of independent certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in all material respects,
the financial position of the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements has been made in accordance
with generally accepted auditing standards, and that such audit provides a reasonable basis
for such opinion in the circumstances, provided that the delivery within the time period
specified above of the Company’s Annual Report on Form 10-K for such fiscal year (together
with the Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the requirements of this
Section 7.1(b), and provided, further, that the Company shall be deemed to have made such
delivery of such Form 10 K if it shall have timely made Electronic Delivery thereof;




          (c) SEC and Other Reports — promptly upon their becoming available, one copy
of (i) each financial statement, report, notice or proxy statement sent by the Company or
any Subsidiary to public securities holders generally, and (ii) each regular or periodic
report, each registration statement that shall have become effective (without exhibits
except as expressly requested by such holder), and each final prospectus and all amendments
thereto filed by the Company or any Subsidiary with the Securities and Exchange Commission;




          (d) Notice of Default or Event of Default — promptly, and in any event within
five Business Days after a Responsible Officer becoming aware of the existence of any
Default or Event of Default, a written notice specifying the nature and period of existence
thereof and what action the Company is taking or proposes to take with respect thereto;




          (e) ERISA Matters — promptly, and in any event within five Business Days after
a Responsible Officer becoming aware of any of the following, a written notice setting forth
the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes
to take with respect thereto:




     (i) with respect to any Plan, any reportable event, as defined in section
4043(b) of ERISA and the regulations thereunder (other than a reportable event of a
technical and routine nature which occurs as a result of a transaction permitted
under Section 10.7(b)), for which notice thereof has not been waived pursuant to
such regulations as in effect on the date hereof; or




     (ii) the taking by the PBGC of steps to institute, or the threatening by the
PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect to such Multiemployer Plan;
or



14









 






     (iii) any event, transaction or condition that could result in the incurrence
of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights, properties or
assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or
such penalty or excise tax provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing, would reasonably be expected
to have a Material Adverse Effect; and




          (f) Requested Information — with reasonable promptness and to the extent not
prohibited by applicable law, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of any Obligor to perform its obligations under the
Financing Documents to which it is a party as from time to time may be reasonably requested
by any such holder of Notes.




	 	7.2.	 	Officer’s Certificate.





          Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth
(which, in the case of Electronic Delivery of any such financial statements, shall be by separate
concurrent delivery of such certificate to each holder of Notes):





          (a) Covenant Compliance — the information (including detailed calculations)
required in order to establish whether the Company was in compliance with the requirements
of Section 10.3 through Section 10.8, inclusive, during the quarterly or annual period
covered by the statements then being furnished (including with respect to each such Section,
where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as
the case may be, permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and




          (b) Event of Default — a statement that such officer has reviewed the relevant
terms hereof and has made, or caused to be made, under his or her supervision, a review of
the transactions and conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being furnished to the date of
the certificate and that such review shall not have disclosed the existence during such
period of any condition or event that constitutes a Default or an Event of Default or, if
any such condition or event existed or exists (including, without limitation, any such event
or condition resulting from the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof and what action
the Company shall have taken or proposes to take with respect thereto.




	 	7.3.	 	Inspection.





          The Company shall permit the representatives of each holder of Notes that is an Institutional
Investor:




15









 









          (a) No Default — if no Default or Event of Default then exists, at the expense
of such holder and upon reasonable prior notice to the Company, to visit the principal
executive office of the Company, to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company’s officers, and, with the consent of the
Company (which consent will not be unreasonably withheld) to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable times and as often as
may be reasonably requested in writing; and




          (b) Default — if a Default or Event of Default then exists, at the expense of
the Company to visit and inspect any of the offices or properties of the Company or any
Subsidiary, to examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent public accountants (and
by this provision the Company authorizes said accountants to discuss the affairs, finances
and accounts of the Company and its Subsidiaries), all at such times and as often as may be
requested.




	8.	 	PREPAYMENT OF THE NOTES.






	 	8.1.	 	Required Prepayments; Payment of Notes at Maturity.






          (a) Seven-Year Notes. As provided therein, the entire unpaid principal balance
of the Seven-Year Notes shall be due and payable on the stated maturity thereof.




          (b) Ten-Year Notes. As provided therein, the entire unpaid principal balance
of the Ten-Year Notes shall be due and payable on the stated maturity thereof.




	 	8.2.	 	Optional Prepayments with Make-Whole Amount.





          The Company may, at its option, upon notice as provided below, prepay at any time all, or from
time to time any part of, the Notes, in an amount not less than 5% of the aggregate principal
amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the principal
amount so prepaid, plus the Make-Whole Amount determined for the prepayment date with respect to
such principal amount. The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify such date, the aggregate principal
amount of the Notes to be prepaid on such date, the principal amount of each Note held by such
holder to be prepaid (determined in accordance with Section 8.4), and the interest to be paid on
the prepayment date with respect to such principal amount being prepaid, and shall be accompanied
by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due with
respect to each Series of Notes in connection with such prepayment (calculated as if the date of
such notice were the date of the prepayment), setting forth in each case the details of such
computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder
of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole
Amount with respect to each Series of Notes as of the specified prepayment date.




16









 









	 	8.3.	 	Change in Control.






          (a) Notice of Change in Control or Control Event. The Company will, within
five Business Days after any Responsible Officer has knowledge of the occurrence of any
Change in Control or Control Event, give written notice of such Change in Control or Control
Event to each holder of Notes unless notice in respect of such Change in Control (or the
Change in Control contemplated by such Control Event) shall have been given pursuant to
Section 8.3(b). If a Change in Control has occurred, such notice shall contain and
constitute an offer to prepay Notes as described in Section 8.3(c) and shall be accompanied
by the certificate described in Section 8.3(g).




          (b) Condition to Company Action. The Company will not take any action that
consummates or finalizes a Change in Control unless




     (i) at least 30 days prior to such action it shall have given to each holder of
Notes written notice containing and constituting an offer to prepay Notes as
described in Section 8.3(c), accompanied by the certificate described in Section
8.3(g), and




     (ii) contemporaneously with such action, it prepays all Notes required to be
prepaid in accordance with this Section 8.3.




          (c) Offer to Prepay Notes. The offer to prepay Notes contemplated by Section
8.3(a) and Section 8.3(b) shall be an offer to prepay, in accordance with and subject to
this Section 8.3, all, but not less than all, of the Notes held by each holder (in this case
only, “holder” in respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified in such offer (the
“Proposed Prepayment Date”). If such Proposed Prepayment Date is in connection with an
offer contemplated by Section 8.3(a), such date shall be not less than 30 days and not more
than 60 days after the date of such offer (if the Proposed Prepayment Date shall not be
specified in such offer, the Proposed Prepayment Date shall be the 30th day after the date
of such offer).




          (d) Acceptance. A holder of Notes may reject the offer to prepay made pursuant
to this Section 8.3 by causing a notice of such rejection to be delivered to the Company at
least five Business Days prior to the Proposed Prepayment Date. A failure by a holder of
Notes to respond to an offer to prepay made pursuant to this Section 8.3 shall be deemed to
constitute an acceptance of such offer by such holder.




          (e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section
8.3 shall be at 100% of the principal amount of such Notes, plus the Make-Whole Amount
determined for the date of prepayment with respect to such principal amount, together with
interest on such Notes accrued to the date of prepayment. Two Business Days preceding the
date of prepayment, the Company shall deliver to each holder of Notes being prepaid a
certificate of a Senior Financial Officer specifying the calculation of the Make-Whole
Amount due in connection with such prepayment (for the avoidance of doubt, in respect of any
prepayment to be made under this Section 8.3 the date of



17









 







which has been deferred pursuant to Section 8.3(f) below, any calculation of accrued
interest or Make-Whole Amount owing to the holders of the Notes to be prepaid shall be made
with reference to the date such prepayment is actually made, rather than the original
Proposed Prepayment Date in respect thereof). The prepayment shall be made on the Proposed
Prepayment Date except as provided in Section 8.3(f).




          (f) Deferral of Obligation to Purchase. The obligation of the Company to
prepay Notes pursuant to the offers accepted in accordance with Section 8.3(d) is subject to
the occurrence of the Change in Control in respect of which such offers and acceptances
shall have been made. In the event that such Change in Control does not occur on or before
the Proposed Prepayment Date in respect thereof, the prepayment shall be deferred until and
shall be made on the date on which such Change in Control occurs. The Company shall keep
each holder of Notes reasonably and timely informed of:




     (i) any such deferral of the date of prepayment;




     (ii) the date on which such Change in Control and the prepayment are expected
to occur; and




     (iii) any determination by the Company that efforts to effect such Change in
Control have ceased or been abandoned (in which case the offers and acceptances made
pursuant to this Section 8.3 in respect of such Change in Control shall be deemed
rescinded).




          (g) Officer’s Certificate. Each offer to prepay the Notes pursuant to this
Section 8.3 shall be accompanied by a certificate, executed by a Senior Financial Officer of
the Company and dated the date of such offer, specifying:




     (i) the Proposed Prepayment Date;




     (ii) that such offer is made pursuant to this Section 8.3;




     (iii) the principal amount of each Note offered to be prepaid;




     (iv) the last date upon which the offer can be accepted or rejected, and
setting forth the consequences of failing to provide an acceptance or rejection, as
provided in Section 8.3(d);




     (v) the estimated Make-Whole Amount, if any, due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation;




     (vi) the interest that would be due on each Note offered to be prepaid, accrued
to the Proposed Prepayment Date;




     (vii) that the conditions of this Section 8.3 have been fulfilled; and



18









 






     (viii) in reasonable detail, the nature and date or proposed date of the Change
in Control.




	 	8.4.	 	Allocation of Partial Prepayments.





          In the case of each partial prepayment of the Notes pursuant to Section 8.2, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes (without regard to
Series) at the time outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.





	 	8.5.	 	Maturity; Surrender, etc.





          In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of
each Note to be prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and Make-Whole Amount, if any,
as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in
full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall
be issued in lieu of any prepaid principal amount of any Note.





	 	8.6.	 	Purchase of Notes.





          Except as otherwise provided in this Section 8, the Company will not and will not permit any
Affiliate to purchase, redeem, prepay, or otherwise acquire, directly or indirectly, any of the
outstanding Notes except pursuant to an offer to purchase (which offer may or may not include the
Make-Whole Amount, if any, or any portion thereof) made by the Company or an Affiliate pro rata to
the holders of all Notes at the time outstanding upon the same terms and conditions, provided that
at the time such offer is made and after giving effect to such purchase, no Default or Event of
Default shall exist. Any such offer shall provide each holder with sufficient information to
enable it to make an informed decision with respect to such offer, shall contain a representation
by the Company that no Default or Event of Default exists or would exist after giving effect to
such proposed purchase of Notes, and shall remain open for at least ten Business Days. If the
holders of more than 50% of the principal amount of the Notes then outstanding accept such offer,
the Company shall promptly notify the remaining holders of such fact and the expiration date for
the acceptance by holders of Notes of such offer shall be extended by the number of days necessary
to give each such remaining holder at least ten Business Days from its receipt of such notice to
accept such offer. The Company will promptly cancel all Notes acquired by it or any Affiliate
pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such Notes.





	 	8.7.	 	Make-Whole Amount.





          The term “Make-Whole Amount” means, with respect to any Note of any Series, an amount equal to
the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note of such Series over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than zero.




19









 







For the purposes of determining the Make-Whole Amount, the following terms have the following
meanings:





          “Called Principal” means, with respect to any Note of any Series, the principal of such
Note that is to be prepaid pursuant to the terms hereof or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context requires.




          “Discounted Value” means, with respect to the Called Principal of any Note of any
Series, the amount obtained by discounting all Remaining Scheduled Payments with respect to
such Called Principal from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which interest on such Series
of Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.




          “Reinvestment Yield” means, with respect to the Called Principal of any Note of any
Series, 0.50% over the yield to maturity implied by




     (i) the yields reported, as of 10:00 A.M. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called Principal, on
the display designated as Page “PX1” on the Bloomberg Financial Markets (or such
other display as may replace Page “PX1” on the Bloomberg Financial Markets) for
actively traded on the run U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date, or




     (ii) if such yields are not reported as of such time or the yields reported as
of such time are not ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which such yields
have been so reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date.


Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted financial practice and (b)
interpolating linearly between (1) the actively traded on the run U.S. Treasury security with the
duration closest to and greater than such Remaining Average Life and (2) the actively traded on the
run U.S. Treasury security with the duration closest to and less than such Remaining Average Life.
The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest
rate of the applicable Series of Notes.





          “Remaining Average Life” means, with respect to any Called Principal of any Series of
Notes, the number of years (calculated to the nearest one-twelfth year) obtained by dividing
(i) such Called Principal into (ii) the sum of the products obtained by



20









 







multiplying (a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled Payment.




          “Remaining Scheduled Payments” means, with respect to the Called Principal of any Note
of any Series, all payments of such Called Principal and interest thereon that would be due
after the Settlement Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if such Settlement Date
is not a date on which interest payments are due to be made under the terms of the Notes of
such Series, then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and required to be paid on
such Settlement Date.




          “Settlement Date” means, with respect to the Called Principal of any Note, the date on
which such Called Principal is to be prepaid pursuant to the terms hereof or has become or
is declared to be immediately due and payable pursuant to Section 12.1, as the context
requires.




	9.	 	AFFIRMATIVE COVENANTS.





          The Company covenants that so long as any of the Notes are outstanding:





	 	9.1.	 	Compliance with Law.





          The Company will and will cause each of its Subsidiaries to comply with all laws, ordinances
or governmental rules or regulations to which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.





	 	9.2.	 	Insurance.





          The Company will and will cause each of its Subsidiaries to maintain, with financially sound
and reputable insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in such amounts
(including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) so that such insurance, taken as a whole, shall be customary for entities of
established reputations engaged in the same or a similar business and similarly situated.





	 	9.3.	 	Maintenance of Properties.





          The Company will and will cause each of its Subsidiaries to maintain and keep, or cause to be
maintained and kept, their respective properties in good repair, working order and condition




21









 







(other than ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section 9.3 shall not prevent the
Company or any Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance would not, individually or in the aggregate, have a Material
Adverse Effect.





	 	9.4.	 	Payment of Taxes and Claims.





          The Company will and will cause each of its Subsidiaries to file all income tax or similar tax
returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due
and payable on such returns and all other taxes, assessments, governmental charges, or levies
payable by any of them, to the extent such taxes and assessments have become due and payable and
before they have become delinquent and all claims for which sums have become due and payable that
have or might become a Lien on properties or assets of the Company or any Subsidiary, provided that
neither the Company nor any Subsidiary need pay any such tax or assessment or claims if (a) the
amount, applicability or validity thereof is contested by the Company or such Subsidiary on a
timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the books of the Company or such
Subsidiary or (b) the nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a Material Adverse Effect.





	 	9.5.	 	Corporate Existence, etc.





          The Company will at all times preserve and keep in full force and effect its corporate
existence. Subject to Sections 10.2 and 10.7, the Company will at all times preserve and keep in
full force and effect the corporate existence of each of its Subsidiaries (unless merged into the
Company or a Subsidiary) and all rights and franchises of the Company and its Subsidiaries unless,
in the good faith judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise would not, individually or in
the aggregate, have a Material Adverse Effect.





	 	9.6.	 	Pari Passu Ranking.





          The Notes shall at all times rank pari passu, without preference or priority, with all other
outstanding, unsecured, unsubordinated Indebtedness of the Company, present and future, that have
not been accorded preferential rights. The obligations of each Subsidiary Guarantor under the
Guaranty Agreement to which such Subsidiary Guarantor is a party shall at all times rank pari
passu, without preference or priority, with all other outstanding, unsecured, unsubordinated
Indebtedness of such Subsidiary Guarantor, present and future, that have not been accorded
preferential rights.





	 	9.7.	 	Financial Covenant Standards.





          If at any time and from time to time on or after the date of Closing, any Primary Senior Debt
shall contain (whether on the date of the Closing or subsequent thereto as the result of an
amendment or modification thereof) one or more Financial Covenants that are either not



22









 






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).




	10.	 	NEGATIVE COVENANTS.





          The Company covenants that so long as any of the Notes are outstanding:





	 	10.1.	 	Transactions with Affiliates.





          The Company will not, and will not permit any Subsidiary to, enter into directly or indirectly
any Material transaction or Material group of related transactions (including, without limitation,
the purchase, lease, sale or exchange of properties of any kind or the rendering of any



23









 






service) with any Affiliate (other than the Company or another Subsidiary), except pursuant to
the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm’s-length transaction with a Person not an Affiliate.





	 	10.2.	 	Merger, Consolidation, etc.





          The Company will not, and will not permit any Subsidiary Guarantor to, consolidate with or
merge with any other Person or convey, transfer or lease all or substantially all of its assets in
a single transaction or series of transactions to any Person unless:





          (a) the successor formed by such consolidation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease substantially all of the assets of the
Company or such Subsidiary Guarantor, as the case may be, as an entirety (the “Survivor”),
as the case may be, shall be a solvent corporation, limited liability company or (in the
case of a Subsidiary Guarantor) limited partnership organized and existing under the laws of
the United States, any state thereof or the District of Columbia, and, if the Company or
such Subsidiary Guarantor is not the Survivor, the Survivor shall have expressly assumed in
writing the due and punctual payment of the principal of and Make-Whole Amount, if any, and
interest on all of the Notes according to their tenor and the due and punctual performance
and observance of each covenant and condition of such Obligor under the applicable Financing
Documents, pursuant to such agreements and instruments as shall be reasonably satisfactory
to the Required Holders;




          (b) to the extent the Company is not the Survivor of such transaction, each Subsidiary
Guarantor shall have executed and delivered to each holder of Notes its reaffirmation of its
obligations under its Guaranty Agreement in form and substance reasonably satisfactory to
the Required Holders; and




          (c) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing.


No such conveyance, transfer or lease of all or substantially all of the assets of any Obligor
shall have the effect of releasing such Obligor or any Survivor that shall theretofore have become
such in the manner prescribed in this Section 10.2 from its liability under the applicable
Financing Documents.





	 	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).





	 	10.4.	 	Leverage Ratio.





          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.




24









 









	 	10.5.	 	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 no
Lien created pursuant to Section 10.6(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 10.5 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.





	 	10.6.	 	Liens.





          The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly
create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any
Lien on or with respect to any property or asset (including, without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or profits therefrom (whether or not
provision is made for the equal and ratable securing of the Notes in accordance with the last
paragraph of this Section 10.6), or assign or otherwise convey any right to receive income or
profits, except:





          (a) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of business:




     (i) in connection with workers’ compensation, unemployment insurance and other
types of social security or retirement benefits, or




     (ii) to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety bonds, bids, leases (other than Capital
Leases), performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property;



25









 






          (b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other similar Liens, in each case incurred in the ordinary course of
business for sums not yet due and payable or the payment of which is not at the time
required by Section 9.4;




          (c) Liens arising from judicial attachments or judgments, or securing appeal bonds, and
other similar Liens, provided that




     (i) the execution or other enforcement of such Liens is effectively stayed, and




     (ii) the claims secured thereby are being actively contested in good faith and
adequate reserves in respect thereof have been established by the Company or such
Subsidiary in accordance with GAAP;




          (d) leases or subleases granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances, in each case incidental to, and not interfering with,
the ordinary conduct of the business of the Company or any of the Subsidiaries, provided
that such Liens do not, in the aggregate, materially impair the use of such property by the
Company or such Subsidiary;




          (e) Liens for taxes, assessments or other governmental charges which are not yet due
and payable or the payment of which is not at the time required by Section 9.4;




          (f) Liens on property of a Subsidiary, provided that such Liens secure only Debt owing
to the Company or a Subsidiary; and




          (g) other Liens not otherwise permitted by paragraphs (a) through (f) of this Section
10.6, 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 10.5.



          If, notwithstanding the prohibition contained herein, the Company shall, or shall permit any
of its Subsidiaries to, directly or indirectly create, incur, assume or permit to exist any Lien,
other than those Liens permitted by the provisions of paragraphs (a) through (g) of this Section
10.6, it will make or cause to be made effective provision whereby the Notes will be secured
equally and ratably with any and all other obligations thereby secured, such security to be
pursuant to agreements reasonably satisfactory to the Required Holders and, in any such case, the
Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of
the Notes may be entitled under applicable law, of an equitable Lien on such property. Such
violation of this Section 10.6 will constitute an Event of Default, whether or not provision is
made for an equal and ratable Lien pursuant to this Section 10.6.




26









 









	 	10.7.	 	Asset Sales.






          (a) Sale of Assets. The Company will not, and will not permit any Subsidiary
to, make any Asset Disposition unless:




     (i) in the good faith opinion of the Company, the Asset Disposition is in
exchange for consideration having a Fair Market Value at least equal to that of the
property exchanged and is in the best interest of the Company or such Subsidiary;




     (ii) immediately after giving effect to the Asset Disposition, no Default or
Event of Default would exist; and




     (iii) immediately after giving effect to the Asset Disposition, the sum of the
Disposition Values in respect of all property that was the subject of any Asset
Disposition occurring in the period commencing with the first day of the Current
Four Quarter Period and ending with and including the date of such Asset Disposition
would not exceed 15% of Consolidated Total Assets as of the end of the then most
recently ended fiscal year of the Company. As used in this Section 10.7(a)(iii),
the term “Current Four Quarter Period” means, as of any date, the period of four
consecutive fiscal quarters of the Company ending on the last day of the then
current fiscal quarter of the Company.


If the Company shall give written notice to the holders of the Notes prior to consummation of any
Transfer that it intends to apply the Net Proceeds Amount arising therefrom to a Debt Prepayment
Application or a Property Reinvestment Application within 365 days after such Transfer, then such
Transfer, only for the purpose of determining compliance with subsection (iii) of this Section
10.7(a), shall be deemed not to be an Asset Disposition. If the Company shall fail to apply such
Net Proceeds Amount as stated in such notice within such period, such failure shall constitute an
Event of Default.





          (b) Disposal of Ownership of a Subsidiary. The Company will not, and will not
permit any of the Subsidiaries to, Transfer any shares of Subsidiary Stock
(including, without limitation, pursuant to any merger, consolidation or other transaction
specified in Section 10.2 hereof), nor will the Company permit any such Subsidiary to issue
or Transfer any shares of its own Subsidiary Stock, provided that the foregoing restrictions
do not apply to:




     (i) the issue of directors’ qualifying shares by any such Subsidiary;




     (ii) any such Transfer of Subsidiary Stock constituting a Transfer described in
clause (a) of the definition of “Asset Disposition”; and




     (iii) the Transfer of all of the Subsidiary Stock of a Subsidiary owned by the
Company and the other Subsidiaries if:




       (A) such Transfer satisfies the requirements of Section 10.7(a) hereof,



27









 






       (B) in connection with such Transfer the entire investment (whether
represented by stock, Debt, claims or otherwise) of the Company and the
other Subsidiaries in such Subsidiary is sold, transferred or otherwise
disposed of to a Person other than (1) the Company, (2) another Subsidiary
not being simultaneously disposed of, or (3) an Affiliate, and




       (C) the Subsidiary being disposed of has no continuing investment in
any other Subsidiary not being simultaneously disposed of or in the Company.




	 	10.8.	 	Sale-and-Leaseback Transactions.





          The Company will not, and will not permit any Subsidiary to, enter into or permit to continue
any Sale-and-Leaseback Transaction unless either (a) the Attributable Debt associated therewith can
be incurred and remain outstanding in accordance with the requirements of Section 10.5 or (b) the
Company shall give written notice to the holders of the Notes prior to consummation of any such
transaction that it intends to apply the Net Proceeds Amount arising therefrom to a Debt Prepayment
Application or a Property Reinvestment Application within 365 days after such consummation, in
which event such transaction, only for the purpose of determining compliance with this Section
10.8, shall be deemed not to be a Sale-and-Leaseback Transaction. If the Company shall fail to
apply such Net Proceeds Amount as stated in such notice within such period, such failure shall
constitute an Event of Default.





	 	10.9.	 	Line of Business.





          The Company will not, and will not permit any of its Subsidiaries to, engage in any business
if, as a result, the general nature of the business in which the Company and its Subsidiaries,
taken as a whole, would then be engaged would be substantially changed from the general nature of
the business in which the Company and its Subsidiaries, taken as a whole, are engaged on the date
of this Agreement as described in the Form 10-K filed for the fiscal year ending April 30, 2008.





	 	10.10.	 	Terrorism Sanctions Regulations.





          The Company will not and will not permit any Subsidiary to (a) become a Person described or
designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engage in any dealings or
transactions with any such Person.





	11.	 	EVENTS OF DEFAULT.





          An “Event of Default” shall exist if any of the following conditions or events shall occur and
be continuing:





          (a) the Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise; or



28









 






          (b) the Company defaults in the payment of any interest on any Note for more than ten
Business Days after the same becomes due and payable; or




          (c) the Company defaults in the performance of or compliance with any term contained in
any one or more of Section 7.1(d) or Sections 10.2 through 10.8, inclusive; or




          (d) any Obligor defaults in the performance of or compliance with any term contained
herein (other than those referred to in Section 11(a)), Section 11(b) or Section 11(c)) and
such default is not remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving written notice of
such default from any holder of a Note (any such written notice to be identified as a
“notice of default” and to refer specifically to this Section 11(d)); or




          (e) any representation or warranty made in writing by or on behalf of any Obligor or by
any officer of such Obligor in any Financing Document or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or




          (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 principal amount of at least $40,000,000
individually or, together with other Indebtedness, with an aggregate principal



29









 







amount of at least $75,000,000 before its regular maturity or before its
regularly scheduled dates of payment, or (y) one or more Persons have the right at
such time to require the Company or such Significant Subsidiary so to purchase or
repay such Indebtedness; or




          (g) the Company or any Significant Subsidiary




     (i) is generally not paying, or admits in writing its inability to pay, its
debts as they become due,




     (ii) files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,




     (iii) makes an assignment for the benefit of its creditors,




     (iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any substantial
part of its property,




     (v) is adjudicated as insolvent or to be liquidated, or




     (vi) takes corporate action for the purpose of any of the foregoing; or




          (h) a court or Governmental Authority of competent jurisdiction enters an order
appointing, without consent by the Company or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of the Company or any of its Significant
Subsidiaries, or any such petition shall be filed against the Company or any of its
Significant Subsidiaries and such petition shall not be dismissed within 90 days; or




          (i) a final judgment or judgments for the payment of money aggregating in excess of
$15,000,000 are rendered against one or more of the Company and its Significant Subsidiaries
and which judgments are not, within 30 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 30 days after the expiration of such
stay; or




          (j) if




     (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or
the Code for any plan year or part thereof or a waiver of such standards or
extension of any amortization period is sought or granted under section 412 of the
Code,



30









 






     (ii) a notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or
the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may
become a subject of any such proceedings,




     (iii) the aggregate “amount of unfunded benefit liabilities” (within the
meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance
with Title IV of ERISA, shall exceed $15,000,000,




     (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably
expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,




     (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan
for which there is unfunded withdrawal liability in excess of $15,000,000, or




     (vi) the Company or any Subsidiary establishes or amends any employee welfare
benefit plan that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder;




and any such event or events described in clauses (i) through (vi) above, either
individually or together with any other such event or events, would reasonably be expected
to have a Material Adverse Effect; or




          (k) any Subsidiary Guarantor fails or neglects to observe, perform or comply with any
term, provision, condition or covenant contained in its respective Guaranty Agreement; or




          (l) any Guaranty Agreement is not or ceases to be effective against the applicable
Subsidiary Guarantor or is alleged by the Company or a Subsidiary Guarantor to be
ineffective against a Subsidiary Guarantor for any reason other than in the event that the
applicable Subsidiary Guarantor is merged with and into the Company.


As used in Section 11(j), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in section 3 of ERISA.





	12.	 	REMEDIES ON DEFAULT, ETC.






	 	12.1.	 	Acceleration.






          (a) If an Event of Default with respect to the Company described in paragraph (g) or
(h) of Section 11 (other than an Event of Default described in clause (i) of such paragraph
(g) or described in clause (vi) of such paragraph (g) by virtue of the



31









 







fact that such clause encompasses clause (i) of such paragraph (g)) has occurred, all the Notes
then outstanding shall automatically become immediately due and payable.




          (b) If any other Event of Default has occurred and is continuing, any holder or holders
of a majority in principal amount of the Notes at the time outstanding may at any time at
its or their option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.




          (c) If any Event of Default described in paragraph (a) or (b) of Section 11 has
occurred and is continuing, any holder or holders of Notes at the time outstanding affected
by such Event of Default may at any time, at its or their option, by notice or notices to
the Company, declare all the Notes held by it or them to be immediately due and payable.



          Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes,
plus (x) all accrued and unpaid interest thereon and (y) the Make-Whole Amount determined in
respect of such principal amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand, protest or further
notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree,
that each holder of a Note has the right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically provided for) and that the provision for
payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are
accelerated as a result of an Event of Default, is intended to provide compensation for the
deprivation of such right under such circumstances.





	 	12.2.	 	Other Remedies.





          If any Default or Event of Default has occurred and is continuing, and irrespective of whether
any Notes have become or have been declared immediately due and payable under Section 12.1, the
holder of any Note at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an injunction against
a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.





	 	12.3.	 	Rescission.





          At any time after any Notes have been declared due and payable pursuant to clause (b) or (c)
of Section 12.1, the holders of not less than 75% in principal amount of the Notes then
outstanding, by written notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by
reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if
any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes,
at the Default Rate, (b) all Events of Default and Defaults, other than non-payment of amounts that
have become due solely by reason of such declaration, have been cured or have



32









 






been waived pursuant to Section 17, and (c) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this
Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any
right consequent thereon.





	 	12.4.	 	No Waivers or Election of Remedies, Expenses, etc.





          No course of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s
rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Note
upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein
or therein or now or hereafter available at law, in equity, by statute or otherwise. Without
limiting the obligations of the Company under Section 15, the Company will pay to the holder of
each Note on demand such further amount as shall be sufficient to cover all costs and expenses of
such holder incurred in any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys’ fees, expenses and disbursements.





	 	12.5.	 	Notice of Acceleration or Rescission.





          Whenever any Note shall be declared immediately due and payable pursuant to Section 12.1 or
any such declaration shall be rescinded or annulled pursuant to Section 12.3, the Obligors shall
forthwith give written notice thereof to the holders of each Note at the time outstanding.





	13.	 	REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.






	 	13.1.	 	Registration of Notes.





          The Company shall keep at its principal executive office a register for the registration and
registration of transfers of Notes. The name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee of one or more Notes shall be
registered in such register. Prior to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof
for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an Institutional Investor
promptly upon request therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.





	 	13.2.	 	Transfer and Exchange of Notes.





          Upon surrender of any Note at the principal executive office of the Company for registration
of transfer or exchange (and in the case of a surrender for registration of transfer, duly endorsed
or accompanied by a written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver within five
Business Days, at the Company’s expense (except as provided below), one or more new Notes of the
same Series (as requested by the holder thereof) in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be



33









 






substantially in the form of such Note set forth in Exhibit 1(a) or Exhibit 1(b), as
applicable. Each such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the surrendered Note if no
interest shall have been paid thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $100,000, provided that if necessary to
enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in
a denomination of less than $100,000. Any transferee, by its acceptance of a Note registered in
its name (or the name of its nominee), shall be deemed to have made the representation set forth in
the last sentence of Section 6.1 and in Section 6.2.





	 	13.3.	 	Replacement of Notes.





          Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and
the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an
Institutional Investor, notice from such Institutional Investor of such ownership and such loss,
theft, destruction or mutilation), and





          (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser
or an Institutional Investor, such Person’s own unsecured agreement of indemnity shall be
deemed to be satisfactory), or




          (b) in the case of mutilation, upon surrender and cancellation thereof,


the Company at its own expense shall execute and deliver within five Business Days, in lieu
thereof, a new Note of the same Series, dated and bearing interest from the date to which interest
shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.





	14.	 	PAYMENTS ON NOTES.






	 	14.1.	 	Place of Payment.





          Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, and interest
becoming due and payable on the Notes shall be made in Orrville, Ohio at the principal office of
the Company in such jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of a bank or trust
company in such jurisdiction.





	 	14.2.	 	Home Office Payment.





          So long as any Purchaser or its nominee shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums
becoming due on such Note for principal, Make-Whole Amount, if any, and interest by the method and
at the address specified for such purpose opposite such Purchaser’s name in Schedule A, or by such
other method or at such other address as such Purchaser shall



34









 






have from time to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon, except that upon
written request of the Company made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company at its principal executive office or at
the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to
any sale or other disposition of any Note held by any Purchaser or its nominee such Purchaser will,
at its election, either endorse thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to the Company in exchange for a new
Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2
to any Institutional Investor that is the direct or indirect transferee of any Note purchased by
such Purchaser under this Agreement and that has made the same agreement relating to such Note as
such Purchaser has made in this Section 14.2.





	15.	 	EXPENSES, ETC.






	 	15.1.	 	Transaction Expenses.





          Whether or not the transactions contemplated hereby are consummated, the Company will pay all
out-of-pocket costs and expenses (including reasonable attorneys’ fees of a special counsel and, if
reasonably required, local or other counsel) incurred by each Purchaser or holder of a Note in
connection with such transactions and in connection with any amendments, waivers or consents under
or in respect of this Agreement, the Notes, the Intercreditor Agreement or any Guaranty Agreement
(whether or not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether
or how to enforce or defend) any rights under this Agreement, the Notes or any Guaranty Agreement
as against any Obligor or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement, the Notes, the Intercreditor
Agreement or any Guaranty Agreement, or by reason of being a holder of any Note, and (b) the costs
and expenses, including financial advisors’ fees, incurred in connection with the insolvency or
bankruptcy of any Obligor or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby and by the Notes. The Company will pay, and will save each
Purchaser and each other holder of a Note harmless from, all claims in respect of any fees, costs
or expenses if any, of brokers and finders (other than those retained by any Purchaser).





	 	15.2.	 	Survival.





          The obligations of the Company under this Section 15 will survive the payment or transfer of
any Note, the enforcement, amendment or waiver of any provision of this Agreement or the Notes, and
the termination of this Agreement.





	16.	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.





          All representations and warranties contained herein shall be deemed made at and as of the date
of the Closing and shall speak only as of such date. The accuracy of such representations



35









 






and warranties as at the date of the Closing shall survive the execution and delivery of this
Agreement and the Notes, the purchase or transfer by any Purchaser or any holder of any Note or
portion thereof or interest therein and the payment of any Note, and may be relied upon by any
subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of
such Purchaser or any other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed
representations and warranties of the Company under this Agreement. Subject to the preceding
sentence, this Agreement, the Notes, the Intercreditor Agreement and the Guaranty Agreements embody
the entire agreement and understanding among each Purchaser, the Company and the Subsidiary
Guarantors, and supersede all prior agreements and understandings relating to the subject matter
hereof.





	17.	 	AMENDMENT AND WAIVER.






	 	17.1.	 	Requirements.





          This Agreement and the Notes may be amended, and the observance of any term hereof or of the
Notes may be waived (either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment or waiver of any of
the provisions of Section 1, 2, 3, 4, 5 or 6 hereof, or any defined term (as it is used therein),
will be effective as to any holder unless consented to by such holder in writing, and (b) no such
amendment or waiver may, without the written consent of the holder of each Note at the time
outstanding, (i) subject to the provisions of Section 12 relating to acceleration or rescission,
change the amount or time of any prepayment or payment of principal of, or reduce the rate or
change the time of payment or method of computation of interest or of the Make-Whole Amount on, the
Notes, (ii) change the percentage of the principal amount of the Notes the holders of which are
required to consent to any such amendment or waiver, or (iii) amend any of Sections 8, 11(a),
11(b), 12, 17 or 20.





	 	17.2.	 	Solicitation of Holders of Notes.






          (a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with all information that the Company
reasonably believes is sufficient, and all other information requested by any of the
holders, sufficiently far in advance of the date a decision is required, to enable such
holder to make an informed and considered decision with respect to any proposed amendment,
waiver or consent in respect of any of the provisions hereof or of the Notes. The Company
will deliver executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 17 to each holder of outstanding Notes
promptly following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.




          (b) Payment. The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security or issue any guaranty, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof unless such remuneration



36









 







is concurrently paid, or security or guaranty is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such holder did not consent
to such waiver or amendment.




          (c) Scope of Consent. Any amendment or waiver made pursuant to this Section
17.2 by a holder of Notes that has transferred or has agreed to transfer its Notes to the
Company, any Subsidiary or any Affiliate and has provided or has agreed to provide such
amendment or waiver as a condition to such transfer shall be void and of no force and effect
except solely as to such holder, and any amendments effected or waivers granted that would
not have been or would not be so effected or granted but for such amendment or waiver (and
the amendments or waivers of all other holders of Notes that were acquired under the same or
similar conditions) shall be void and of no force and effect, retroactive to the date such
amendment or waiver initially took or takes effect, except solely as to such holder.




	 	17.3.	 	Binding Effect, etc.





          Any amendment or waiver consented to as provided in this Section 17 applies equally to all
holders of Notes and is binding upon them and upon each future holder of any Note and upon the
Company without regard to whether such Note has been marked to indicate such amendment or waiver.
No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default
or Event of Default not expressly amended or waived or impair any right consequent thereon. No
course of dealing between the Company and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term “this Agreement” and references thereto shall mean this Agreement
as it may from time to time be amended or supplemented.





	 	17.4.	 	Notes held by Company, etc.





          Solely for the purpose of determining whether the holders of the requisite percentage of the
aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver
or consent to be given under this Agreement or the Notes, or have directed the taking of any action
provided herein or in the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.





	18.	 	NOTICES.





          All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered or certified mail with return
receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:





	 	(i)	 	if to any Purchaser or its nominee, to such Purchaser or its nominee at
the address specified for such communications in Schedule A, or at such other address
as such Purchaser or its nominee shall have specified to the Company in writing,




37









 












	 	(ii)	 	if to any other holder of any Note, to such holder at such address as
such other holder shall have specified to the Company in writing, or
	 
	 	(iii)	 	if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of the “Treasurer,” with a copy to the attention of
the “Legal Department,” or at such other address as the Company shall have specified to
the holder of each Note in writing.





Notices under this Section 18 will be deemed given only when actually received.





	19.	 	REPRODUCTION OF DOCUMENTS.





          This Agreement and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b) documents received by any
Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates
and other information previously or hereafter furnished to the holders of the Notes, may be
reproduced by the holders of the Notes by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and the holders of the Notes may destroy any
original document so reproduced. The Company agrees and stipulates that, to the extent permitted
by applicable law, any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in existence and whether
or not such reproduction was made by such holder in the regular course of business) and any
enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in
evidence. This Section 19 shall not prohibit the Company or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.





	20.	 	CONFIDENTIAL INFORMATION.





          For the purposes of this Section 20, “Confidential Information” means information delivered to
any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified when received by such Purchaser as
being confidential information of the Company or such Subsidiary, provided that such term does not
include information that





          (a) was publicly known or otherwise known to such Purchaser prior to the time of such
disclosure,




          (b) subsequently becomes publicly known through no act or omission by such Purchaser or
any Person acting on such Purchaser’s behalf,




          (c) otherwise becomes known to such Purchaser other than through disclosure by the
Company or any Subsidiary or




          (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that
are otherwise publicly available.



38









 




Each Purchaser will maintain the confidentiality of such Confidential Information in accordance
with procedures adopted by such Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose
Confidential Information to





     (i) such Purchaser’s directors, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the administration
of the investment represented by such Purchaser’s Notes and is not used in
connection with the analysis of any other investment in the Company except in a
manner that is in compliance with applicable securities laws),




     (ii) such Purchaser’s financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 20,




     (iii) any other holder of any Note,




     (iv) any Institutional Investor to which such Purchaser sells or offers to sell
such Note or any part thereof or any participation therein (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be bound
by the provisions of this Section 20),




     (v) any Person from which such Purchaser offers to purchase any Security of the
Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20),




     (vi) any federal or state regulatory authority having jurisdiction over such
Purchaser,




     (vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about such Purchaser’s investment portfolio, or




     (viii) any other Person to which such delivery or disclosure may be necessary
or appropriate




       (A) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser,




       (B) in response to any subpoena or other legal process,




       (C) in connection with any litigation to which such Purchaser is a
party or




       (D) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure
to be necessary or appropriate in the enforcement or for the



39









 







protection of the rights and remedies under its Notes, this Agreement
or any Guaranty Agreement.


Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement.
On reasonable request by the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or requested by such
holder (other than a holder that is a party to this Agreement or its nominee), such holder will
enter into an agreement with the Company embodying the provisions of this Section 20.





	21.	 	MISCELLANEOUS.






	 	21.1.	 	Successors and Assigns.





          All covenants and other agreements contained in this Agreement by or on behalf of any of the
parties hereto bind and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or not.





	 	21.2.	 	Payments Due on Non-Business Days.





          Anything in this Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or Make-Whole Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day without including the additional
days elapsed in the computation of the interest payable on such next succeeding Business Day.





	 	21.3.	 	Severability.





          Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall (to the full extent permitted by law) not invalidate or render
unenforceable such provision in any other jurisdiction.





	 	21.4.	 	Construction.





          Each covenant contained herein shall be construed (absent express provision to the contrary)
as being independent of each other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with
any other covenant. Where any provision herein refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.





	 	21.5.	 	Counterparts.





          This Agreement may be executed in any number of counterparts, each of which shall be an
original but all of which together shall constitute one instrument. Each counterpart may



40









 






consist of a number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.





	 	21.6.	 	Accounting Terms





          All accounting terms used herein which are not expressly defined in this Agreement have the
meanings respectively given to them in accordance with GAAP. Except as otherwise specifically
provided herein, (a) all computations made pursuant to this Agreement shall be made in accordance
with GAAP, and (b) all financial statements shall be prepared in accordance with GAAP.





	 	21.7.	 	Governing Law.





          THIS AGREEMENT 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.





	 	21.8.	 	Jurisdiction and Process; Waiver of Jury Trial.






(a) The Company irrevocably submits to the non-exclusive jurisdiction of any New
York State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this
Agreement or the Notes. To the fullest extent permitted by applicable law, the
Company irrevocably waives and agrees not to assert, by way of motion, as a defense
or otherwise, any claim that it is not subject to the jurisdiction of any such court,
any objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.




(b) The Company consents to process being served by or on behalf of any holder
of Notes in any suit, action or proceeding of the nature referred to in Section
21.8(a) by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, return receipt requested, to it
at its address specified in Section 18 or at such other address of which such holder
shall then have been notified pursuant to said Section. The Company agrees that such
service upon receipt (i) shall be deemed in every respect effective service of
process upon it in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal service
upon and personal delivery to it. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States Postal
Service or any reputable commercial delivery service.




(c) Nothing in this Section 21.8 shall affect the right of any holder of a Note
to serve process in any manner permitted by law, or limit any right that the holders
of any of the Notes may have to bring proceedings against the Company in the



41









 







courts of any appropriate jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.




(d) The parties hereto hereby waive trial by jury in any action brought on or
with respect to this Agreement, the Notes or any other document executed in
connection herewith or therewith.



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





42











 





     If each Purchaser is in agreement with the foregoing, please sign the form of agreement on the
accompanying counterpart of this Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between the Purchasers and the Company.



	 	 	 	 	 
	 	Very truly yours,





THE J. M. SMUCKER COMPANY

 	 
	 	By:  	/s/ Mark R. Belgya
 	 
	 	 	Name:  	Mark R. Belgya 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



The foregoing is hereby agreed to

as of the date thereof.




METROPOLITAN LIFE INSURANCE COMPANY




FIRST METLIFE INVESTORS INSURANCE COMPANY

by Metropolitan Life Insurance Company, its Investment Manager




NEW ENGLAND LIFE INSURANCE COMPANY

by Metropolitan Life Insurance Company, its Investment Manager




	 	 	 	 	 
	By:  	/s/ Judith A. Gulotta
 	 	 
	 	Name:  	Judith A. Gulotta 	 	 
	 	Title:  	Managing Director

(executed by Metropolitan Life Insurance Company (i) as to itself
as a Purchaser and (ii) as investment manager to First MetLife
Investors Insurance Company as a Purchaser and New England
Insurance Company as a Purchaser) 	 	 



	 	 	 	 	 
	THE NORTHWESTERN MUTUAL LIFE INSURANCE

COMPANY

 	 	 
	By:  	/s/ David A. Baras
 	 	 
	 	Name:  	David A. Baras 	 	 
	 	Its:       Authorized Representative 	 	 
	 



[Signature Page to Note Purchase Agreement]





 









 








THE NORTHWESTERN MUTUAL LIFE INSURANCE

COMPANY FOR ITS GROUP ANNUITY SEPARATE

ACCOUNT




	 	 	 	 	 
	By:  	                  /s/ David A. Baras
 	 	 
	 	Name:  	David A. Baras 	 	 
	 	Its:        Authorized Representative 	 	 
	 



	 	 	 
	JACKSON NATIONAL LIFE INSURANCE COMPANY
	By:

	 	PPM America, Inc., as attorney in fact,

on behalf of Jackson National Life Insurance Company






	 	 	 	 	 
	By:  	                    /s/ Luke Stifflear
 	 	 
	 	Name:  	Luke Stifflear 	 	 
	 	Title:  	Senior Managing Director 	 	 



	 	 	 
	HARTFORD LIFE INSURANCE COMPANY

HARTFORD INSURANCE COMPANY OF ILLINOIS

HARTFORD CASUALTY INSURANCE COMPANY

HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
	By:

	 	Hartford Investment Management Company

Their Agent and Attorney-in-Fact






	 	 	 	 	 
	By:  	                        /s/ Robert Mills
 	 	 
	 	Name:  	Robert Mills 	 	 
	 	Title:  	Vice President 	 	 



	 	 	 	 	 
	STATE FARM LIFE INSURANCE COMPANY

 	 	 
	By:  	/s/ Julie Hoyer
 	 	 
	 	Name:  	Julie Hoyer 	 	 
	 	Title:  	Senior Investment Officer 	 	 



	 	 	 	 	 
	By:  	                 /s/ Jeffrey T. Attwood
 	 	 
	 	Name:  	Jeffrey T. Attwood 	 	 
	 	Title:  	Investment Officer 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








	 	 	 	 	 
	STATE FARM LIFE AND ACCIDENT ASSURANCE

COMPANY

 	 	 
	By:  	/s/ Julie Hoyer
 	 	 
	 	Name:  	Julie Hoyer 	 	 
	 	Title:  	Senior Investment Officer 	 	 



	 	 	 	 	 
	By:  	                 /s/ Jeffrey T. Attwood
 	 	 
	 	Name:  	Jeffrey T. Attwood 	 	 
	 	Title:  	Investment Officer 	 	 



	 	 	 
	UNUM LIFE INSURANCE COMPANY OF AMERICA
	By:

	 	Provident Investment Management, LLC
	Its:

	 	Agent






	 	 	 	 	 
	By:  	                         /s/ Ben Vance
 	 	 
	 	Name:  	Ben Vance 	 	 
	 	Title:  	Vice President 	 	 



	 	 	 
	COLONIAL LIFE & ACCIDENT INSURANCE COMPANY
	By:

	 	Provident Investment Management, LLC
	Its:

	 	Agent






	 	 	 	 	 
	By:  	                        /s/ Ben Vance
 	 	 
	 	Name:  	Ben Vance 	 	 
	 	Title:  	Vice President 	 	 



ING LIFE INSURANCE AND ANNUITY COMPANY

ING USA ANNUITY AND LIFE INSURANCE COMPANY

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

By: ING Investment Management LLC, as Agent





	 	 	 	 	 
	By:  	                      /s/ Christopher P. Lyons
 	 	 
	 	Name:  	Christopher P. Lyons 	 	 
	 	Title:  	Senior Vice President 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








CINCINNATI LIFE INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                        /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 



THE MUTUAL SAVINGS LIFE INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                          /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 



THE RELIABLE LIFE INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                             /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 



FARM BUREAU LIFE INSURANCE COMPANY

OF MICHIGAN

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                             /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 





GREAT WESTERN INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                       /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








THE CATHOLIC AID ASSOCIATION

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                        /s/ James Tobin
 	 	 
	 	Name:  	James Tobin 	 	 
	 	Title:  	Vice President 	 	 



AMERICAN REPUBLIC INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                        /s/ Joseph R. Betlei
 	 	 
	 	Name:  	Joseph R. Betlei 	 	 
	 	Title:  	Vice President 	 	 



UNION NATIONAL LIFE INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                        /s/ Joseph R. Betlei
 	 	 
	 	Name:  	Joseph R. Betlei 	 	 
	 	Title:  	Vice President 	 	 



UNITED INSURANCE COMPANY OF AMERICA

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                        /s/ Joseph R. Betlei
 	 	 
	 	Name:  	Joseph R. Betlei 	 	 
	 	Title:  	Vice President 	 	 



SECURITY NATIONAL LIFE INSURANCE COMPANY

By: Advantus Capital Management, Inc.




	 	 	 	 	 
	By:  	                         /s/ Joseph R. Betlei
 	 	 
	 	Name:  	Joseph R. Betlei 	 	 
	 	Title:  	Vice President 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








	 	 	 	 	 
	AXA EQUITABLE LIFE INSURANCE COMPANY

 	 	 
	By:  	/s/ Amy Judd
 	 	 
	 	Name:  	Amy Judd 	 	 
	 	Title:  	Investment Officer 	 	 



	 	 	 
	ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
	By:

	 	Allianz of America, Inc. as the authorized signatory

and investment manager






	 	 	 	 	 
	By:  	                  /s/ Gary Brown
 	 	 
	 	Name:  	Gary Brown 	 	 
	 	Title:  	Assistant Treasurer 	 	 



	 	 	 	 	 
	THE GUARDIAN LIFE INSURANCE COMPANY

OF AMERICA

 	 	 
	By:  	/s/ Barry Scheinholtz
 	 	 
	 	Name:  	Barry Scheinholtz 	 	 
	 	Title:  	Senior Director, Private Placements 	 	 



	 	 	 	 	 
	THE TRAVELERS INDEMNITY COMPANY

 	 	 
	By:  	/s/ David D. Rowland
 	 	 
	 	Name:  	David D. Rowland 	 	 
	 	Title:  	Sr. Vice President 	 	 



	 	 	 	 	 
	MODERN WOODMEN OF AMERICA

 	 	 
	By:  	/s/ Nick S. Coin
 	 	 
	 	Name:  	Nick S. Coin 	 	 
	 	Title:  	Treasurer & Investment Manager 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








	 	 	 
	THE UNION CENTRAL LIFE INSURANCE COMPANY
	By:

	 	Summit Investment Advisors, Inc., as Agent






	 	 	 	 	 
	By:  	                        /s/ Andrew S. White
 	 	 
	 	Name:  	Andrew S. White 	 	 
	 	Title:  	Managing Director — Private Placements 	 	 





				 	 
	
AMERITAS LIFE INSURANCE CORP.

By: Summit Investment Advisors, Inc., as Agent


	By:  	 /s/ Andrew S. White
 	 	 
	 	Name:  	Andrew S. White 	 	 
	 	Title:  	Managing Director — Private Placements 	 	 
	 



ACACIA LIFE INSURANCE COMPANY

By: Summit Investment Advisors, Inc., as Agent




	 	 	 	 	 
	By:  	                     /s/ Andrew S. White
 	 	 
	 	Name:  	Andrew S. White 	 	 
	 	Title:  	Managing Director — Private Placements 	 	 



	 	 	 	 	 
	LIFE INSURANCE COMPANY OF THE SOUTHWEST

 	 	 
	By:  	/s/ R. Scott Higgins
 	 	 
	 	Name:  	R. Scott Higgins 	 	 
	 	Title:  	Senior Vice President, Sentinel Asset Management 	 	 
	 



	 	 	 	 	 
	STANDARD INSURANCE COMPANY

 	 	 
	By:  	/s/ Julie Grandstaff
 	 	 
	 	Name:  	Julie Grandstaff 	 	 
	 	Title:  	Vice President & Managing Director 	 	 
	 



[Signature Page to Note Purchase Agreement]




 









 








	 	 	 	 	 
	COUNTRY LIFE INSURANCE COMPANY

 	 	 
	By:  	/s/ John Jacobs
 	 	 
	 	Name:  	John Jacobs 	 	 
	 	Title:  	Director — Fixed Income 	 	 



	 	 	 	 	 
	COUNTRY MUTUAL INSURANCE COMPANY

 	 	 
	By:  	/s/ John Jacobs
 	 	 
	 	Name:  	John Jacobs 	 	 
	 	Title:  	Director — Fixed Income 	 	 



	 	 	 	 	 
	COTTON STATES LIFE INSURANCE

 	 	 
	By:  	/s/ John Jacobs
 	 	 
	 	Name:  	John Jacobs 	 	 
	 	Title:  	Director — Fixed Income 	 	 



	 	 	 	 	 
	NATIONAL GUARDIAN LIFE INSURANCE COMPANY

 	 	 
	By:  	/s/ R.A. Mucci
 	 	 
	 	Name:  	R.A. Mucci 	 	 
	 	Title:  	Senior Vice President & Treasurer 	 	 
	 



[Signature Page to Note Purchase Agreement]





 











 

 



SCHEDULE A




INFORMATION RELATING TO PURCHASERS



[omitted]



 









 





SCHEDULE B




DEFINED TERMS




     As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:



     “Affiliate” means, at any time, and with respect to any Person, any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person. As used in this definition, “Control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a
reference to an Affiliate of the Company.



     “Agreement” is defined in Section 17.3.



     “Anti-Terrorism Order” means Executive Order No. 13,224 of September 23, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49079 (2001), as amended.



     “Asset Disposition” means any Transfer except :




     (a) any




	 	(i)	 	Transfer from a Subsidiary to the Company or a
Wholly-Owned Subsidiary;
	 
	 	(ii)	 	Transfer from the Company to a Wholly-Owned
Subsidiary; and
	 
	 	(iii)	 	Transfer from the Company to a Subsidiary
(other than a Wholly-Owned Subsidiary) or from a Subsidiary to another
Subsidiary (other than a Wholly-Owned Subsidiary), which in either case
is for Fair Market Value,






so long as immediately before and immediately after the consummation of any such Transfer
and after giving effect thereto, no Default or Event of Default exists; or




     (b) any Transfer made in the ordinary course of business and involving only property
that is either (i) inventory held for sale or (ii) equipment, fixtures, supplies or
materials no longer required in the operation of the business of the Company or any of its
Subsidiaries or that is obsolete.



     “Attributable Debt” means, as to any particular lease relating to a Sale-and-Leaseback
Transaction, the present value of all Lease Rentals required to be paid by the Company or any
Subsidiary under such lease during the remaining term thereof (determined in accordance with



Schedule B-1









 




generally accepted financial practice using a discount factor equal to the interest rate
implicit in such lease if known or, if not known, an interest rate of 10% per annum).




     “Bank Credit Agreement” means that certain unsecured revolving credit facility by and among
the Company, Key Bank National Association, as Agent, and the lenders named therein, dated as of
June 18, 2004, as such agreement may be amended or restated from time to time.



     “Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banks in New York City, New York are required or authorized to be closed.



     “Capital Lease” means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.



     “Change in Control” means:




     (a) the acquisition of, or, if earlier, the shareholder or director approval of the
acquisition of, ownership or voting control, directly or indirectly, beneficially (as a
“beneficial owner” as such term is used in Rule 13d-3 under the Exchange Act as in effect on
the date of the Closing) or of record, on or after the date of the Closing, by any person
(within the meaning of section 13(d) and section 14(d)(2) of the Exchange Act as in effect
on the date of the Closing) or related persons constituting a group (within the meaning of
Rule 13d-5 of the SEC under the Exchange Act, as in effect on the date of the Closing) of
shares representing more than forty-five percent (45%) of the aggregate Ordinary Voting
Power represented by the issued and outstanding capital stock of the Company (calculated on
a fully diluted basis); provided that the foregoing restriction shall not apply to
acquisitions of capital stock by the Smucker Family if the acquisition by the Smucker Family
of such Ordinary Voting Power shall not result, directly or indirectly, in a “going private
transaction” within the meaning of the Exchange Act;




     (b) during any period of twenty-four (24) consecutive calendar months, individuals who
were directors of the Company on the first day of such period (together with any new
director whose election by the board of directors of the Company or whose nomination for
election by the stockholders of the Company was approved by a vote of at least a majority of
the directors then still in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so approved) shall cease to
constitute a majority of the board of directors of the Company;




     (c) the sale or transfer of all or substantially all of the assets of the Company, in a
single transaction or a series of related transactions, to any person (within the meaning of
section 13(d) and section 14(d)(2) of the Exchange Act, as in effect on the date of the
Closing) or related persons constituting a group (within the meaning of Rule 13d-5 of the
SEC under the Exchange Act, as in effect on the date of the Closing);




     (d) the occurrence of a change in control, or other similar provision, as defined in
any Material Indebtedness Agreement, which causes any Indebtedness or other obligations
incurred under such Material Indebtedness Agreement to become due prior to its stated
maturity or other due date thereof or to cause the holders of Indebtedness or



Schedule B-2









 







other obligations thereunder to have the right to require any Indebtedness or other
obligations incurred under such Material Indebtedness Agreement to be purchased or prepaid
prior to the stated maturity or other due date thereof; or




     (e) the failure of at least one of Timothy P. Smucker or Richard K. Smucker to serve as
a director of the Company if such failure to serve as a director is due to: (i) the
voluntary resignation as a director of such person prior to his 70th birthday (unless such
resignation is due to poor health, in which case such resignation will not be deemed to be
“voluntary” for purposes of this definition), (ii) the voluntary decision of such person not
to stand for reelection as a director unless such re-election would be for a term commencing
after his 70th birthday or such decision is attributable to poor health, (iii) a
determination of the directors of the Company not to nominate such person to stand for
re-election for any term commencing prior to his 70th birthday (unless such decision was
attributable to such person’s poor health), or (iv) the failure of the shareholders to elect
such person for any term commencing prior to his 70th birthday. For purposes of clarity, it
shall not constitute a Change in Control (1) so long as either Timothy P. Smucker or Richard
K. Smucker is serving as director of the Company, or (2) if neither Timothy P. Smucker or
Richard K. Smucker is serving as a director, the Remaining Director is no longer serving as
a director as a result of an event other than one described in clause (i), (ii), (iii), or
(iv) of the preceding sentence. For purposes of this definition “Remaining Director” means
the last one of Richard K. Smucker or Timothy P. Smucker to serve as a director of the
Company.



     “Closing” is defined in Section 3.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.



     “Company” is defined in the introductory sentence of this Agreement.



     “Confidential Information” is defined in Section 20.



     “Consolidated Attributable Debt” means, as of any date of determination, the total of all
Attributable Debt of the Company and its Subsidiaries outstanding on such date, after eliminating
all offsetting debits and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated financial statements of
the Company and its Subsidiaries in accordance with GAAP.



     “Consolidated Debt” means, as of any date of determination, the total of all Debt of the
Company and its Subsidiaries outstanding on such date, after eliminating all offsetting debits and
credits between the Company and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.



     “Consolidated Funded Debt” means, as of any date of determination, the total of all Funded
Debt of the Company and its Subsidiaries outstanding on such date, after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all other items



Schedule B-3









 







required to be eliminated in the course of the preparation of consolidated financial
statements of the Company and its Subsidiaries in accordance with GAAP.



     “Consolidated Net Worth” means, at any time,




     (a) the sum of (i) the par value (or value stated on the books of the corporation) of
the capital stock (but excluding treasury stock, capital stock subscribed and unissued and
Preferred Stock redeemable prior to the maturity date of the Notes) of the Company and its
Subsidiaries plus (ii) the amount of the paid-in capital and retained earnings of the
Company and its Subsidiaries, in each case as such amounts would be shown on a consolidated
balance sheet of the Company and its Subsidiaries as of such time prepared in accordance
with GAAP, minus




     (b) to the extent included in clause (a), all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.



     “Consolidated Total Assets” means, at any time, the total assets of the Company and the
Subsidiaries which would be shown as assets on a consolidated balance sheet of the Company and the
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries.



     “Consolidated Total Capitalization” means, at any time, the sum of Consolidated Net Worth and
Consolidated Funded Debt.



     “Control Event” means:




     (a) the execution, by the holders of Voting Stock of the Company (together with their
respective executors, heirs, beneficiaries, successors and assigns) or (in the case of any
natural Person) their respective Families or Family Trusts, or by the Company or any of its
Subsidiaries or Affiliates, of any agreement or letter of intent with respect to any
proposed transaction or event or series of transactions or events which, individually or in
the aggregate, may reasonably be expected to result in a Change in Control;




     (b) the execution of any written agreement which, when fully performed by the parties
thereto, would result in a Change in Control; or




     (c) the making of any written offer by any person (as such term is used in section
13(d) and section 14(d)(2) of the Exchange Act as in effect on the date of the Closing) or
related persons constituting a group (as such term is used in Rule 13d-5 under the Exchange
Act as in effect on the date of the Closing) to the holders of the Voting Stock of the
Company, which offer, if accepted by the requisite number of holders, would result in a
Change in Control.



     “Debt” means, with respect to any Person, without duplication:




     (a) its liabilities for borrowed money;



Schedule B-4









 






     (b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business but including,
without limitation, all liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);




     (c) all liabilities appearing on its balance sheet in accordance with GAAP in respect
of Capital Leases;




     (d) all liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities); and




     (e) any Guaranty of such Person with respect to liabilities of a type described in any
of clauses (a) through (d) hereof.


Debt of any Person shall include all obligations of such Person of the character described in
clauses (a) through (e) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP.




     “Debt Prepayment Application” means, with respect to any Transfer of property, the application
by the Company or its Subsidiaries of cash in an amount equal to the Net Proceeds Amount with
respect to such Transfer to pay Senior Funded Debt of the Company (other than Senior Funded Debt
owing to the Company, any of its Subsidiaries or any Affiliate and Senior Funded Debt in respect of
any revolving credit or similar credit facility providing the Company or any of its Subsidiaries
with the right to obtain loans or other extensions of credit from time to time, except to the
extent that in connection with such payment of Senior Funded Debt the availability of credit under
such credit facility is permanently reduced by an amount not less than the amount of such proceeds
applied to the payment of such Senior Funded Debt).



     “Default” means an event or condition the occurrence or existence of which would, with the
lapse of time or the giving of notice or both, become an Event of Default.



     “Default Rate” means, with respect to any Note, that rate of interest that is the greater of
(a) 2% per annum above the rate of interest stated in clause (a) of the first paragraph of such
Note or (b) 2% per annum over the rate of interest publicly announced from time to time by JPMorgan
Chase Bank, N.A. (or its successor) in New York City as its “base” or “prime” rate.



     “Disposition Value” means, at any time, with respect to any property




     (a) in the case of property that does not constitute Subsidiary Stock, the book value
thereof, valued at the time of such disposition in good faith by the Company; and




     (b) in the case of property that constitutes Subsidiary Stock, an amount equal to that
percentage of book value of the assets of the Subsidiary that issued such stock as is equal
to the percentage that the book value of such Subsidiary Stock represents of the book value
of all of the outstanding capital stock of such Subsidiary (assuming, in making such
calculations, that all Securities convertible into such capital stock are so converted and
giving full effect to all transactions that would occur or be required in



Schedule B-5









 







connection with such conversion) determined at the time of the disposition thereof, in
good faith by the Company.



     “Electronic Delivery” is defined in Section 7.1(a).



     “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in effect.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as
a single employer together with the Company under section 414 of the Code.



     “Event of Default” is defined in Section 11.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Fair Market Value” means, at any time, the sale value of such property that would be realized
in an arm’s-length sale at such time between an informed and willing buyer and an informed and
willing seller (neither being under a compulsion to buy or sell), as determined by, in the case of
any property that is to be the subject of a Transfer:




     (a) an appraiser of established reputation in appraising property of the kind to be
subject to such Transfer;




     (b) the highest price offered for such property in a competitive bidding process in
which at least three potential bidders have been requested to participate so long as the
Company had a reasonable basis on which to make such request (in terms of such potential
bidders’ financial resources and interest in such property); or




     (c) an analysis prepared by the Company which in addition to taking into account the
standard set forth in this definition prior to clause (a) shall take into account the
operating costs that would be saved by disposing of such property, and the relative tax
benefits attributable to continued ownership and to disposition of such property; provided,
however, that the sum of the Disposition Value of such property, plus the Disposition Value
of all other such property Transferred during the 365 day period ending on such date, shall
not exceed an amount equal to 3% of Consolidated Total Assets as of the end of the then most
recently ended fiscal year of the Company. Any such evaluation shall be delivered to the
holders of the Notes together with an Officer’s Certificate, signed by a Senior Financial
Officer, certifying as to the accuracy and completeness of such evaluation.



Schedule B-6









 





     “Family” means, in respect of any individual, the heirs, legatees, descendants and blood
relatives to the fifth degree of consanguinity of such individual.



     “Family Trusts” means, in respect of any individual, any trusts for the exclusive benefit of
such individual, his or her spouse and lineal descendants.



     “Financing Documents” means this Agreement, the Notes and each Guaranty Agreement, as each may
be amended, restated or otherwise modified from time to time, and all other documents to be
executed and/or delivered in favor of any holders of Notes, or all of them, by the Company, any of
its Subsidiaries, or any other Person in connection with this Agreement.



     “Folgers Acquisition Date” means the date on which The Folgers Coffee Company becomes a
Subsidiary of the Company pursuant to that certain Transaction Agreement dated as of June 4, 2008
among The Proctor & Gamble Company, The Folgers Coffee Company, the Company and Moon Merger Sub,
Inc.



     “Folgers Bank Credit Agreement” means that certain Credit Agreement by and among The Folgers
Coffee Company, Bank of Montreal as administrative agent, Bank of America, N.A. as syndication
agent and the lenders party thereto to be entered into on or prior to the Folgers Acquisition Date,
as such agreement may be amended or restated from time to time.



     “Foreign Subsidiary” means any Subsidiary of the Company which is not organized under the laws
of the United States of America, any State thereof or the District of Columbia.



     “Funded Debt” means, with respect to any Person, all Debt of such Person which by its terms or
by the terms of any instrument or agreement relating thereto matures, or which is otherwise payable
or unpaid, one year or more from, or is directly or indirectly renewable or extendible at the
option of the obligor in respect thereof to a date one year or more (including, without limitation,
an option of such obligor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of one year or more) from, the date of the creation thereof.



     “GAAP” means generally accepted accounting principles as in effect from time to time in the
United States of America.



     “Governmental Authority” means the government of




     (a) the United States of America or any state or other political subdivision thereof,
or




     (b) any jurisdiction in which the Company or any Subsidiary conducts all or any part of
its business, or which asserts jurisdiction over any properties of the Company or any
Subsidiary, or


any entity exercising executive, legislative, judicial, regulatory or administrative functions of,
or pertaining to, any such government.




Schedule B-7









 








     “Guaranty” means, with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other
Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:




     (a) to purchase such indebtedness or obligation or any property constituting security
therefor;




     (b) to advance or supply funds (i) for the purchase or payment of such indebtedness or
obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;




     (c) to lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or




     (d) otherwise to assure the owner of such indebtedness or obligation against loss in
respect thereof.



     In any computation of the indebtedness or other liabilities of the obligor under any Guaranty,
the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.



     “Guaranty Agreement” means, collectively (a) the guaranty agreements delivered by Smucker LLC
pursuant to the terms of Section 4.10, and (b) any Guaranty executed and delivered in favor of the
holders of Notes in form and substance satisfactory to the Required Holders.



     “holder” means, with respect to any Note, the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 13.1.



     “Indebtedness” with respect to any Person means, at any time, without duplication:




     (a) its liabilities for borrowed money and its redemption obligations in respect of
mandatorily redeemable Preferred Stock;




     (b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or other title retention agreement
with respect to any such property);




     (c) all liabilities appearing on its balance sheet in accordance with GAAP in respect
of Capital Leases;



Schedule B-8









 






     (d) all liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities);




     (e) all of its liabilities in respect of letters of credit or instruments serving a
similar function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);




     (f) Swaps of such Person; and




     (g) any Guaranty of such Person with respect to liabilities of a type described in any
of clauses (a) through (f) hereof.



     “Institutional Investor” means (a) any original purchaser of a Note, (b) any holder of a Note
holding more than 5% of the aggregate principal amount of the Notes then outstanding, and (c) any
bank, trust company, savings and loan association or other financial institution, any pension plan,
any investment company, any insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.



     “Intercreditor Agreement” is defined in Section 4.11.



     “Lease Rentals” means, with respect to any period, the sum of the minimum amount of rental and
other obligations required to be paid during such period by the Company or any Subsidiary as lessee
under all leases of real or personal property (other than Capital Leases), excluding any amounts
required to be paid by the lessee (whether or not therein designated as rental or additional
rental) (a) which are on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, or (b) which are based on profits, revenues or sales realized by the
lessee from the leased property or otherwise based on the performance of the lessee.



     “Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar arrangements).



     “Make-Whole Amount” is defined in Section 8.7.



     “Material” means material in relation to the business, operations, affairs, financial
condition, assets, or properties of the Company and its Subsidiaries taken as a whole.



     “Material Adverse Effect” means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a
whole, (b) the ability of the Company to perform its obligations under this Agreement and the
Notes, (c) the ability of any Subsidiary Guarantor to perform its obligations under its respective
Guaranty Agreement or (d) the validity or enforceability of this Agreement, the Notes or any
Guaranty Agreement.



Schedule B-9









 





     “Material Indebtedness Agreement” means any debt instrument, lease (capital, operating or
otherwise), guaranty, contract, commitment, agreement or other arrangement evidencing any
Indebtedness of the Company in excess of the amount of Fifteen Million Dollars ($15,000,000).



     “Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in
section 4001(a)(3) of ERISA).



     “Net Proceeds Amount” means, with respect to any Transfer of any property by any Person, an
amount equal to the difference of




     (a) the aggregate amount of the consideration (valued at the Fair Market Value of such
consideration at the time of the consummation of such Transfer) received by such Person in
respect of such Transfer, minus




     (b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by
such Person in connection with such Transfer.



     “1999 Note Agreement” means, collectively, those certain Note Purchase Agreements, each dated
as of June 16, 1999, among the Company and each of the Persons listed on Schedule A thereto, as the
same may be amended, restated, modified or otherwise supplemented and in effect from time to time.



     “Notes” is defined in Section 1.1.



     “Obligors” means, collectively, the Company and each Subsidiary Guarantor.



     “Offeree Letters” is defined in Section 5.13.



     “Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other
officer of the Company, or any Subsidiary, as the context may require, whose responsibilities
extend to the subject matter of such certificate.



     “Ordinary Voting Power” means the voting power attributable to all shares of Voting Stock of
the Company for purposes of electing directors of the Company.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any
successor thereto.



     “Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency or political subdivision
thereof.



     “Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) that is or,
within the preceding five years, has been established or maintained, or to which contributions are
or, within the preceding five years, have been made or required to be made, by the Company or any
ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.



Schedule B-10









 





     “Preferred Stock” means any class of capital stock of a corporation that is preferred over any
other class of capital stock of such corporation as to the payment of dividends or the payment of
any amount upon liquidation or dissolution of such corporation.



     “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 (but it shall include any refinancings, extensions or replacements of
the Folgers Bank Credit Agreement).



     “Priority Debt” means the sum of (a) all Debt of the Company secured by Liens permitted by
Section 10.6(g), (b) all Debt of Subsidiaries (other than (x) Debt held by the Company or a
Wholly-Owned Subsidiary or (y) Debt of any Subsidiary Guarantor, so long as such Debt is subject to
the terms of the Intercreditor Agreement) and (c) Consolidated Attributable Debt.



     “property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.



     “Property Reinvestment Application” means, with respect to any Transfer of property, the
satisfaction of each of the following conditions:




     (a) an amount equal to the Net Proceeds Amount with respect to such Transfer shall have
been applied to the acquisition by the Company, or any of its Subsidiaries making such
Transfer, of property that upon such acquisition is unencumbered by any Lien (other than
Liens described in subparagraphs (a) through (f), inclusive, of Section 10.6) and that




     (i) constitutes property that is (x) property classifiable under GAAP
as non-current to the extent that such proceeds are derived from the
Transfer of property that was properly classifiable as non-current, and
otherwise properly classifiable as either current or non-current, and (y)
to be used in the ordinary course of business of the Company and the
Subsidiaries, or




     (ii) constitutes equity interests of a Person that shall be, on or
prior to the time of such acquisition, a Subsidiary of the Company, and
that shall invest the proceeds of such acquisition in property of the
nature described in the immediately preceding clause (i); and




     (b) the Company shall have delivered a certificate of a Responsible Officer of the
Company to each holder of a Note referring to Section 10.7 or Section 10.8, as applicable,
and identifying the property that was the subject of such Transfer, the Disposition Value of
such property, and the nature, terms, amount and application of the proceeds from the
Transfer.



Schedule B-11









 





     “Proposed Prepayment Date” is defined in Section 8.3(c).



     “PTE” means a United States Department of Labor Prohibited Transaction Class Exemption.



     “Purchasers” means and includes each of the Persons listed in Schedule A.



     “QPAM Exemption” is defined in Section 6.2(c).



     “Required Holders” means, at any time, the holders of at least a majority in principal amount
of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).



     “Responsible Officer” means any Senior Financial Officer and any other officer of the Company
or any Subsidiary Guarantor with responsibility for the administration of the relevant portion of
this Agreement.



     “Sale-and-Leaseback Transaction” means a transaction or series of transactions pursuant to
which the Company or any Subsidiary shall sell or transfer to any Person (other than the Company or
a Subsidiary) any property, whether now owned or hereafter acquired, and, as part of the same
transaction or series of transactions, the Company or any Subsidiary shall rent or lease as lessee
(other than pursuant to a Capital Lease), or similarly acquire the right to possession or use of,
such property or one or more properties which it intends to use for the same purpose or purposes as
such property.



     “Securities Act” means the Securities Act of 1933, as amended from time to time.



     “Security” has the meaning set forth in Section 2(1) of the Securities Act.



     “Senior Financial Officer” means the Chief Financial Officer, principal accounting officer,
treasurer or controller of the Company.



     “Senior Funded Debt” means all Funded Debt of the Company (other than Subordinated Funded
Debt) and all Funded Debt of Subsidiaries.



     “Series” means any series of Notes issued under this Agreement.



     “Seven-Year Notes” is defined in Section 1.1.



     “Significant Subsidiary” means at any time any Subsidiary that would at such time constitute a
“significant subsidiary” (as such term is defined in Regulation S-X of the Securities and Exchange
Commission as in effect on the date of the Closing) of the Company; provided that each Subsidiary
Guarantor shall at all times be deemed a Significant Subsidiary.



     “Smucker Family” means and includes Timothy P. Smucker, Richard K. Smucker, Susan Smucker
Wagstaff and Marcella Smucker Clark, and their respective Families and Family Trusts.



     “Smucker LLC” means J.M. Smucker LLC, an Ohio limited liability company.



Schedule B-12









 





     “Source” is defined in Section 6.2.



     “Subordinated Funded Debt” means any Funded Debt of the Company that is subordinated in right
of payment or security to Funded Debt evidenced by the Notes, in each case, upon written terms and
conditions reasonably satisfactory to the Required Holders.



     “Subsidiary” means, as to any Person, any corporation, association or other business entity in
which such Person or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership can and
does ordinarily take major business actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a
“Subsidiary” is a reference to a Subsidiary of the Company.



     “Subsidiary Guarantor” means, collectively, Smucker LLC and any other Subsidiary that has
executed and delivered to the holders of Notes a Guaranty Agreement, together with an opinion of
counsel to such Subsidiary in form and substance satisfactory to the Required Holders, evidence of
proper corporate authorization and such other documents and instruments as may be reasonably
requested by the Required Holders.



     “Subsidiary Stock” means, with respect to any Person, the stock (or any options or warrants to
purchase stock or other Securities exchangeable for or convertible into stock) of any Subsidiary of
such Person.



     “Survivor” is defined in Section 10.2(a).



     “Swaps” means, with respect to any Person, payment obligations with respect to interest rate
swaps, currency swaps and similar obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the purposes of this Agreement, the
amount of the obligation under any Swap shall be the amount determined in respect thereof as of the
end of the then most recently ended fiscal quarter of such Person, based on the assumption that
such Swap had terminated at the end of such fiscal quarter, and in making such determination, if
any agreement relating to such Swap provides for the netting of amounts payable by and to such
Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and
to such Person, then in each such case, the amount of such obligation shall be the net amount so
determined.



     “Ten-Year Notes” is defined in Section 1.1.



     “Transfer” means, with respect to any Person, any transaction in which such Person sells,
conveys, transfers or leases (as lessor) any of its property, including, without limitation,
Subsidiary Stock. For purposes of determining the application of the Net Proceeds Amount in respect
of any Transfer, the Company may designate any Transfer as one or more separate Transfers each
yielding a separate Net Proceeds Amount. In any such case, the Disposition Value of any property
subject to each such separate Transfer shall be determined by ratably



Schedule B-13









 







allocating the aggregate Disposition Value of all property subject to all such separate
Transfers to each such separate Transfer on a proportionate basis.



     “2000 Note Agreement” means, collectively, those certain Note Purchase Agreements, each dated
as of August 23, 2000, among the Company and each of the Persons listed on Schedule A thereto, as
the same may be amended, restated, modified or otherwise supplemented and in effect from time to
time.



     “2004 Note Agreement” means, that certain Note Purchase Agreement, dated as of May 27, 2004,
among the Company and each of the Persons listed on Schedule A thereto, as the same may be amended,
restated, modified or otherwise supplemented and in effect from time to time.



     “2007 Note Agreement” means, that certain Note Purchase Agreement, dated as of May 31, 2007,
among the Company and each of the Persons listed on Schedule A thereto, as the same may be amended,
restated, modified or otherwise supplemented and in effect from time to time.



     “USA Patriot Act” means United States Public Law 107-56, the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act
of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from
time to time in effect.



     “Voting Stock” means capital stock of any class or classes of a Person the holders of which
are ordinarily, in the absence of contingencies, entitled to elect corporate directors (or Persons
performing similar functions).



     “Wholly-Owned Subsidiary” means, at any time, any Subsidiary one hundred percent (100%) of all
of the equity interests (except directors’ qualifying shares) and voting interests of which are
owned by any one or more of the Company and the Company’s other Wholly-Owned Subsidiaries at such
time.




Schedule B-14









 








EXHIBIT 1(a)




[FORM OF TEN-YEAR NOTE]




THE J. M. SMUCKER COMPANY




6.63% SENIOR NOTE DUE NOVEMBER 1, 2018




			
	 	 	 
	No. R-[___]
	 	[Date]
	$[______]
	 	PPN: 832696 C@5






     FOR VALUE RECEIVED, the undersigned, THE J. M. SMUCKER COMPANY (herein called the “Company”),
a corporation organized and existing under the laws of the State of Ohio, hereby promises to pay to
[__________________], or registered assigns, the principal sum of [__________________]
DOLLARS ($[_________]) on November 1, 2018, with interest (computed on the basis of a 360-day year
of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.63% per annum from the
date hereof, payable semiannually, on the first day of May or November in each year, commencing
with the May 1 or November 1 next succeeding the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue payment (including
any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of
any Make-Whole Amount (as defined in the Note Purchase Agreement referred to below) payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate
per annum from time to time equal to the greater of (i) 8.63% or (ii) 2% over the rate of interest
publicly announced from time to time by JPMorgan Chase Bank, N.A. of New York in New York City, New
York as its “base” or “prime” rate.



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the address shown in the register
maintained by the Company for such purpose or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.



     This Note is one of a Series of the 6.63% Senior Notes (herein called the “Notes”) issued
pursuant to the Note Purchase Agreement, dated as of October 23, 2008 (as from time to time
amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, (a) to have agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (b) to have made the representations set forth in the last sentence
of Section 6.1 and in Section 6.2 of the Note Purchase Agreement.



     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the



Exhibit 1(a)-1









 







Company may treat the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company will not be affected by
any notice to the contrary.



     The Company will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     THIS NOTE AND THE NOTE PURCHASE AGREEMENT 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.



	 	 	 	 	 
	 	THE J. M. SMUCKER COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Exhibit 1(a)-2









 






	 	 	 	 	 



EXHIBIT 1(b)




[FORM OF SEVEN-YEAR NOTE]




THE J. M. SMUCKER COMPANY




6.12% SENIOR NOTE DUE NOVEMBER 1, 2015




			
	 	 	 
	No. R-[___]
	 	[Date]
	$[_________]
	 	PPN: 832696 C#3






     FOR VALUE RECEIVED, the undersigned, THE J. M. SMUCKER COMPANY (herein called the “Company”),
a corporation organized and existing under the laws of the State of Ohio, hereby promises to pay to
[_______________], or registered assigns, the principal sum of [____________]
DOLLARS ($[__________________]) on November 1, 2015, with interest (computed on the basis of a 360-day year
of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.12% per annum from the
date hereof, payable semiannually, on the first day of May or November in each year, commencing
with the May 1 or November 1 next succeeding the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue payment (including
any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of
any Make-Whole Amount (as defined in the Note Purchase Agreement referred to below) payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate
per annum from time to time equal to the greater of (i) 8.12% or (ii) 2% over the rate of interest
publicly announced from time to time by JPMorgan Chase Bank, N.A. of New York in New York City, New
York as its “base” or “prime” rate.



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the address shown in the register
maintained by the Company for such purpose or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.



     This Note is one of a Series of the 6.12% Senior Notes (herein called the “Notes”) issued
pursuant to the Note Purchase Agreement, dated as of October 23, 2008 (as from time to time
amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, (a) to have agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (b) to have made the representations set forth in the last sentence
of Section 6.1 and in Section 6.2 of the Note Purchase Agreement.



     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the



Exhibit 1(b)-1









 







Company may treat the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company will not be affected by
any notice to the contrary.



     The Company will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     THIS NOTE AND THE NOTE PURCHASE AGREEMENT 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.



	 	 	 	 	 
	 	THE J. M. SMUCKER COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exhibit 1(b)-2









 








EXHIBIT 4.4(a)




FORM OF OPINION OF COUNSEL FOR THE COMPANY AND SMUCKER LLC




SEE ATTACHED




Exhibit 4.4(a)



[omitted]




 









 








EXHIBIT 4.4(b)




FORM OF OPINION OF SPECIAL COUNSEL FOR THE PURCHASERS




SEE ATTACHED




Exhibit 4.4(b)




[omitted]



 









 








EXHIBIT 4.10




FORM OF GUARANTY AGREEMENT




SEE ATTACHED




Exhibit 4.10



[omitted]



 









 





EXHIBIT 5.13




FORMS OF OFFEREE LETTERS




SEE ATTACHED




Exhibit 5.13




[omitted]