exv10w2






Exhibit 10.2




FOURTH AMENDMENT TO

NOTE PURCHASE AGREEMENT




     THIS FOURTH AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of June 11, 2010 (this
“Amendment”), to that certain Note Purchase Agreement, dated as of May 27, 2004 (as amended by that
certain First Amendment to Note Purchase Agreement dated as of May 31, 2004, that certain Second
Amendment to Note Purchase Agreement dated as of October 23, 2008 and that certain Third Amendment
to Note Purchase Agreement dated as of November 6, 2008 and as in effect immediately prior to the
effectiveness of this Amendment, the “Existing Note Purchase Agreement”), among The J. M. Smucker
Company, an Ohio corporation (the “Company”), and the purchasers signatory thereto (together with
their successors, transferees and assigns, collectively, the “Noteholders”) pursuant to which the
Company issued to the Noteholders its 4.78% Senior Notes due June 1, 2014 in the aggregate
principal amount of $100,000,000 (collectively, the “Notes”). Capitalized terms used herein shall
have the respective meanings ascribed thereto in the Existing Note Purchase Agreement unless herein
defined or the context shall otherwise require.



RECITALS:




     A. The Noteholders are the holders of all of the outstanding Notes.



     B. The Company and the Noteholders now desire to amend the Existing Note Purchase Agreement in
the respects, but only in the respects, hereinafter set forth.



     NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Noteholders do hereby agree as follows:



1. AMENDMENTS.




1.1. Amendment to Section 21.6 (Accounting Terms).




     Section 21.6 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 21.6 is hereby inserted in its place, to read as follows:



     “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.
Notwithstanding the foregoing or any other provision of this Agreement, for purposes of determining
compliance with the financial covenants contained in this Agreement, any election by the Company to
measure any portion of a non-derivative financial liability at fair value (as permitted by
Financial Accounting Standards Board Accounting Standards Codification Section 825-10 or any
similar accounting standard), other than to reflect a hedge of such non-derivative



 









 




financial liability (including both interest rate and foreign currency hedges), shall be
disregarded and such determination shall be made as if such election had not been made.”




1.2. Amendment to Section 11 (Events of Default).




     Section 11(f) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 11(f) is hereby inserted in its place, to read as follows:




“(f) the Company or any Significant Subsidiary




     (i) is in default (as principal or as guarantor or other surety) in the payment
of any principal of or premium or Make-Whole Amount or interest on any Indebtedness
(other than Indebtedness under this Agreement and the Notes) that is outstanding in
an aggregate principal amount of at least $5,000,000 beyond any period of grace
provided with respect thereto (after giving effect to any consents or waivers in
respect thereof); or




     (ii) is in default in the performance of or compliance with any term of any
evidence of any Indebtedness under (x) the Bank Credit Agreement, (y) the 2009 Bank
Credit Agreement or (z) 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, in the case of each of
clauses (x), (y) and (z), 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
(1) the Bank Credit Agreement, (2) the 2009 Bank Credit Agreement or (3) 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 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”



     1.2. Amendment to Schedule B.



     Schedule B to the Existing Note Purchase Agreement is hereby amended by inserting the
following new definition into such Schedule, in its proper alphabetical order, to read as follows:



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     ““2009 Bank Credit Agreement” means that certain unsecured revolving credit facility by and
among the Company, Smucker Foods of Canada Corp. (formerly known as Smucker Foods of Canada Co.),
the guarantors party thereto from time to time, Bank of Montreal, as Agent, and the lenders party
thereto from time to time, dated as of October 29, 2009, as such agreement may be amended or
restated from time to time.”



2. NO OTHER MODIFICATIONS; CONFIRMATION.




     All the provisions of the Notes, and, except as expressly amended, modified and supplemented
hereby, all the provisions of the Existing Note Purchase Agreement, are and shall remain in full
force and effect. As of the Effective Date (defined below), all references in the Notes to the
“Note Purchase Agreement” shall be references to the Existing Note Purchase Agreement, as modified
by this Amendment and as hereafter amended, modified or supplemented in accordance with its terms.



3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.




     To induce the Noteholders to execute and deliver this Amendment (which representations shall
survive such execution and delivery), the Company represents and warrants to the Noteholders that:




     (a) all of the representations and warranties contained in Section 5 of the Existing
Note Purchase Agreement are correct with the same force and effect as if made by the Company
on the date hereof (or, if any representation or warranty is expressly stated to have been
made as of a specific date, as of such date), except that the representations contained in
Sections 5.4, 5.5 and 5.15 of the Note Purchase Agreement were true and correct as of the
date of the Closing;




     (b) Smucker LLC is a limited liability company duly organized, validly existing and in
good standing under the laws of the state of Ohio;




     (c) The Folgers Coffee Company (“Folgers”) is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware;




     (d) this Amendment has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding obligation, contract and agreement of the Company,
enforceable against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors’ rights generally;




     (e) the Existing Note Purchase Agreement and the Guaranty Agreements of Smucker LLC and
Folgers each constitute a legal, valid and binding obligation, contract and agreement of the
Company, Smucker LLC and Folgers, respectively, enforceable against them in accordance with
their respective terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating to or limiting
creditors’ rights generally;



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




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



4. EFFECTIVENESS.




     The amendments set forth in Section 1 of this Amendment shall become effective only upon the
date of the satisfaction in full of the following conditions precedent (which date shall be the
“Effective Date”):



4.1. Execution and Delivery of this Amendment.




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



4.2. Representations and Warranties.




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



4.3. No Injunction, etc.




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



4.4. Amendment to 2000 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Sixth Amendment to Note Purchase Agreements, dated as of the date hereof, by and among the Company
and each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of August 23, 2000, together with each of the other instruments and
agreements executed and/or delivered in connection therewith, in each case in form and substance
reasonably satisfactory to the Required Holders.



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4.5. Amendment to 2007 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Third Amendment to Note Purchase Agreement, dated as of the date hereof, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of May 31, 2007, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, in each case in form and substance reasonably
satisfactory to the Required Holders.



4.6. Amendment to 2008 Note Purchase Agreement.




     The Company shall have delivered to the Noteholders a fully executed copy of that certain
Second Amendment to Note Purchase Agreement, dated as of the date hereof, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of October 23, 2008, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, in each case in form and substance reasonably
satisfactory to the Required Holders.



4.7. Payment of Special Counsel Fees.




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



5. EXPENSES.




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



6. MISCELLANEOUS.




     6.1. This Amendment constitutes a contract between the Company and the Noteholders for the
uses and purposes hereinabove set forth, and may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto. Delivery of an executed signature page by facsimile or other
electronic transmission shall be effective as delivery of a manually signed counterpart of this
Amendment.



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



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



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



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




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



	 	 	 	 	 	 	 

	 	 	THE J. M. SMUCKER COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Debra A. Marthey
 

Debra A. Marthey
	 	 
	 

	 	Title:
	 	Treasurer	 	 






Accepted and Agreed to:




	 	 	 	 	 	 	 

	METROPOLITAN LIFE INSURANCE COMPANY

on behalf of itself and as investment manager of:	 	 
	 
	 	 	 	 	 	 
	METLIFE INSURANCE COMPANY OF CONNECTICUT	 	 
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Judith A. Gulotta
 

Judith A. Gulotta
	 	 	 	 
	Title:

	 	Managing Director	 	 	 	 






	 	 	 	 	 	 	 	 	 

	PRIME REINSURANCE COMPANY, INC.	 	 	 	 
	By:	 	Conning, Inc., as Investment Manager	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John H. DeMallie
 

John H. DeMallie
	 	 	 	 
	 

	 	Title:
	 	Director	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	NATIONAL BENEFIT LIFE INSURANCE COMPANY	 	 	 	 
	By:	 	Conning, Inc., as Investment Manager	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John H. DeMallie
 

John H. DeMallie
	 	 	 	 
	 

	 	Title:
	 	Director	 	 	 	 






 









 






	 	 	 	 	 	 	 

	THE PRUDENTIAL INSURANCE COMPANY 

OF AMERICA	 	 
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/ David S. Quackenbush
 

David S. Quackenbush
	 	 	 	 
	Title:

	 	Vice President	 	 	 	 
	 
	 	 	 	 	 	 
	GENWORTH LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Stephen DeMotto
 

Stephen DeMotto
	 	 	 	 
	Title:

	 	Investment Officer	 	 	 	 






	 	 	 	 	 	 	 	 	 

	TRUSTMARK INSURANCE COMPANY	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas B. Houghton
 

Thomas B. Houghton
	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	AMERICAN FIDELITY ASSURANCE COMPANY	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas B. Houghton
 

Thomas B. Houghton
	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	THE LAFAYETTE LIFE INSURANCE COMPANY	 	 	 	 
	By:	 	Advantus Capital Management, Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas B. Houghton
 

Thomas B. Houghton
	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 

	INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY	 	 
	By:	 	Advantus Capital Management, Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas B. Houghton
 

Thomas B. Houghton
	 	 	 	 
	 

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

	 	By:

Name:
	 	/s/ Thomas B. Houghton
 

Thomas B. Houghton
	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 	 	 






	 	 	 	 	 	 	 

	MODERN WOODMEN OF AMERICA	 	 	 	 
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Douglas A. Pannier
 

Douglas A. Pannier
	 	 	 	 
	Title:

	 	Portfolio Manager — Private Placements	 	 	 	 






 









 





GUARANTOR ACKNOWLEDGEMENT




     The undersigned hereby acknowledges and agrees to the terms of the Fourth Amendment to Note
Purchase Agreement, dated as of June 11, 2010 (the “Amendment”), amending that certain Note
Purchase Agreement, dated as of May 27, 2004, as amended by that certain First Amendment to Note
Purchase Agreement dated as of May 31, 2004, that certain Second Amendment to Note Purchase
Agreement dated as of October 23, 2008 and that certain Third Amendment to Note Purchase Agreement
dated as of November 6, 2008 (as amended, the “Note Purchase Agreement”), among The J. M. Smucker
Company, an Ohio corporation, and the holders of Notes party thereto. The undersigned hereby
confirms that the Guaranty Agreement to which the undersigned is a party remains in full force and
effect after giving effect to the Amendment and continues to be the valid and binding obligation of
the undersigned, enforceable against the undersigned in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditor’s rights generally or by equitable principles.



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



[Reminder of page intentionally left blank. Next page is a signature page.]






 









 








     Dated
as of June 11, 2010



	 	 	 	 	 	 	 

	 	 	J.M. SMUCKER LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Debra A. Marthey
 

Debra A. Marthey
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	THE FOLGERS COFFEE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Debra A. Marthey
 

Debra A. Marthey
	 	 
	 

	 	Title:
	 	Treasurer