EXHIBIT 10.1
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THE J. M. SMUCKER COMPANY
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NOTE PURCHASE AGREEMENT
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DATED AS OF MAY 27, 2004
$100,000,000 4.78% SENIOR NOTES DUE JUNE 1, 2014
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.
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TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES................................................................... 1
1.1. Notes........................................................................... 1
1.2. Certain Defined Terms........................................................... 1
2. SALE AND PURCHASE OF NOTES............................................................... 1
3. CLOSING.................................................................................. 1
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 Number........................................................ 4
4.9. Changes in Corporate Structure.................................................. 4
4.10. Amendments to Existing Note Agreements.......................................... 4
4.11. Guaranty 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....................................................... 8
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........................................................... 10
5.16. Foreign Assets Control Regulations, etc......................................... 10
5.17. Status under Certain Statutes................................................... 10
6. REPRESENTATIONS OF THE PURCHASER......................................................... 10
6.1. Purchase for Investment......................................................... 10
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6.2. Source of Funds................................................................. 11
6.3. Authorization, etc.............................................................. 12
7. INFORMATION AS TO COMPANY................................................................ 13
7.1. Financial and Business Information.............................................. 13
7.2. Officer's Certificate........................................................... 15
7.3. Inspection...................................................................... 16
8. PREPAYMENT OF THE NOTES.................................................................. 16
8.1. 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............................................................... 20
9. AFFIRMATIVE COVENANTS.................................................................... 21
9.1. Compliance with Law............................................................. 21
9.2. Insurance....................................................................... 22
9.3. Maintenance of Properties....................................................... 22
9.4. Payment of Taxes and Claims..................................................... 22
9.5. Corporate Existence, etc........................................................ 22
9.6. Pari Passu Ranking.............................................................. 23
9.7. Financial Covenant Standards.................................................... 23
10. NEGATIVE COVENANTS....................................................................... 24
10.1. Transactions with Affiliates.................................................... 24
10.2. Merger, Consolidation, etc...................................................... 24
10.3. Consolidated Net Worth.......................................................... 25
10.4. Incurrence of Funded Debt....................................................... 25
10.5. Incurrence of Current Debt...................................................... 26
10.6. Priority Debt................................................................... 26
10.7. Liens........................................................................... 26
10.8. Asset Sales..................................................................... 28
10.9. Sale-and-Leaseback Transactions................................................. 29
10.10. Line of Business................................................................ 29
11. EVENTS OF DEFAULT........................................................................ 30
12. REMEDIES ON DEFAULT, ETC................................................................. 33
12.1. Acceleration.................................................................... 33
12.2. Other Remedies.................................................................. 33
12.3. Rescission...................................................................... 34
12.4. No Waivers or Election of Remedies, Expenses, etc............................... 34
12.5. Notice of Acceleration or Rescission............................................ 34
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13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES............................................ 34
13.1. Registration of Notes........................................................... 34
13.2. Transfer and Exchange of Notes.................................................. 35
13.3. Replacement of Notes............................................................ 35
14. PAYMENTS ON NOTES........................................................................ 36
14.1. Place of Payment................................................................ 36
14.2. Home Office Payment............................................................. 36
15. EXPENSES, ETC............................................................................ 36
15.1. Transaction Expenses............................................................ 36
15.2. Survival........................................................................ 37
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT............................. 37
17. AMENDMENT AND WAIVER..................................................................... 37
17.1. Requirements.................................................................... 37
17.2. Solicitation of Holders of Notes................................................ 38
17.3. Binding Effect, etc............................................................. 38
17.4. Notes held by Company, etc...................................................... 39
18. NOTICES.................................................................................. 39
19. REPRODUCTION OF DOCUMENTS................................................................ 39
20. CONFIDENTIAL INFORMATION................................................................. 40
21. MISCELLANEOUS............................................................................ 41
21.1. Successors and Assigns.......................................................... 41
21.2. Payments Due on Non-Business Days............................................... 42
21.3. Severability.................................................................... 42
21.4. Construction.................................................................... 42
21.5. Counterparts.................................................................... 42
21.6. Governing Law................................................................... 42
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SCHEDULES & EXHIBITS
Schedule A - Information Relating to Purchasers
Schedule B - Defined Terms
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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
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Exhibit 1 - Form of 4.78% Senior Note due June 1, 2014
Exhibit 4.4(a) - Form of Opinion of Counsel for the Company and MIX
Exhibit 4.4(b) - Form of Opinion of Special Counsel for the Purchasers
Exhibit 4.11 - Form of Guaranty Agreement
Exhibit 5.13 - Form of Offeree Letter
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THE J. M. SMUCKER COMPANY
STRAWBERRY LANE
ORRVILLE, OHIO 44667
$100,000,000 4.78% SENIOR NOTES DUE JUNE 1, 2014
Dated as of May 27, 2004
To each of the Purchasers listed
in the attached Schedule A (the "PURCHASERS"):
Ladies and Gentlemen:
THE J. M. SMUCKER COMPANY, an Ohio corporation (the "COMPANY"), agrees
with the Purchasers as follows:
1. AUTHORIZATION OF NOTES.
1.1. NOTES.
The Company will authorize the issue and sale of $100,000,000 aggregate
principal amount of its 4.78% Senior Notes due June 1, 2014 (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 form set
out in Exhibit 1, with such changes therefrom, if any, as may be approved by the
Purchasers and the Company.
1.2. CERTAIN DEFINED TERMS.
Certain capitalized 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 May 27, 2004 or on such other Business Day thereafter on or
prior to August 15, 2004 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 (or such greater
number of Notes 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 2037464 at National City Bank,
Cleveland, Ohio, ABA number 041000124, 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 MIX 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 corporate proceedings
relating to the authorization, execution and delivery of the
Notes and this Agreement.
(c) MIX's Secretary's Certificate. MIX 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,
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execution and delivery by MIX of the Guaranty Agreement
delivered pursuant to Section 4.11.
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
MIX, 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 MIX 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 Closing and all post-closing matters relating thereto (including,
without limitation, preparation of closing files).
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4.8. PRIVATE PLACEMENT NUMBER.
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 by the Company
for the Notes.
4.9. CHANGES IN CORPORATE STRUCTURE.
Except as specified in Schedule 4.9, neither the Company nor MIX 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. AMENDMENTS TO EXISTING NOTE AGREEMENTS.
The Company shall have delivered to the Purchasers fully executed copies
of (a) that certain Second Amendment to Note Purchase Agreements, dated as of
May 27, 2004, by and among the Company and each of the Persons listed on
Schedule A thereto with respect to the 1999 Note Agreement, and (b) that certain
Second Amendment to Note Purchase Agreements dated as of May 27, 2004, by and
among the Company, and each of the Persons listed on Schedule A thereto with
respect to the 2000 Note Agreement, together with each of the other instruments
and agreements executed and/or delivered in connection therewith, each certified
as true and correct by a Responsible Officer.
4.11. MIX GUARANTY AGREEMENT.
MIX shall have executed and delivered to the Purchasers a guaranty
agreement, substantially in the form of Exhibit 4.11.
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 is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation 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. The
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Company has the corporate 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 this Agreement and
the Notes and to perform the provisions hereof and 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 4.11 has
been duly authorized by all necessary corporate action on the
part of MIX, and such Guaranty Agreement constitutes the
legal, valid and binding obligation of MIX 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 April 30, 2003, 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
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each class of its capital stock or similar equity interests
outstanding owned by the Company and each other Subsidiary.
(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).
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by each of the Company and MIX 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;
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(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.
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) MIX of the Guaranty Agreement delivered pursuant to Section 4.11.
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, 2003.
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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.
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.
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(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,
2004, $19,383,742.
(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 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 letter of William Blair &
Company, L.L.C. attached hereto as Exhibit 5.13 (the "OFFEREE LETTER"), 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 3 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 Letter, 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.
is the only Person 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
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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.
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 April 30, 2004, 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.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
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.
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 1935, as amended, or the Federal Power Act, as amended, or (b) in
violation of the USA Patriot Act.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. PURCHASE FOR INVESTMENT.
Each Purchaser 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
represents and 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
10
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 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 fixed contractual obligations of an
insurance company, under which any amounts payable, or
credited, to any
11
employee benefit plan having an interest in such account
and to any participant or beneficiary of such plan
(including an annuitant) are not affected in any manner
by the investment performance of the separate account
(as provided by 29 CFR Section 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)
12
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).
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 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
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);
(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);
(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 10.8(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
14
has been taken by the PBGC with respect to such
Multiemployer Plan; or
(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;
(f) Bank Credit Agreement -- promptly, and in any event within
five Business Days of the execution thereof, a copy of the
Bank Credit Agreement, certified as true and correct by a
Responsible Officer;
(g) Acquisition -- promptly, and in any event within five Business
Days of the consummation of the Acquisition, evidence that
International Multifoods Corporation has been merged with and
into MIX and all of the property, real, personal and mixed, of
International Multifoods Corporation shall be vested in MIX;
and
(h) 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:
(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 10.9, 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
15
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:
(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. PAYMENT OF NOTES AT MATURITY.
The entire outstanding principal amount of, and the interest then accrued
and unpaid on, the Notes shall be due and payable on June 1, 2014.
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
16
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 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. 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 as of the specified
prepayment date.
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
17
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 accept the offer to prepay
made pursuant to this Section 8.3 by causing a notice of such
acceptance 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. 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 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;
18
(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
(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, the principal amount
of the Notes to be prepaid shall be allocated among all of the Notes 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
19
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, 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 over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, 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, 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 the 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, 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 Market Service (or such other display as may
replace Page "PX1" on the Bloomberg Financial Market
Service) for actively traded 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,
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
20
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 U.S. Treasury security with the duration closest to and greater than such
Remaining Average Life and (2) the actively traded U.S. Treasury security with
the duration closest to and less than such Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called Principal
of any 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 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, 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, 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,
21
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 (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 10.8, 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.
22
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.
9.7. FINANCIAL COVENANT STANDARDS.
If at any time and from time to time after the date of Closing, the
Company enters into the Bank Credit Agreement or any modification thereof, and
the Bank Credit Agreement or such modification contains one or more Financial
Covenants that are either not contained in this Agreement or are contained in
this Agreement but are more favorable to the lender or lenders under the Bank
Credit Agreement 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 the Bank
Credit Agreement 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 the Bank Credit Agreement 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 the Bank Credit
Agreement.
"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
23
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 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 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
24
Documents.
10.3. CONSOLIDATED NET WORTH.
The Company will not, at any time, permit Consolidated Net Worth to be
less than Two Hundred Forty Million Dollars ($240,000,000).
10.4. INCURRENCE OF FUNDED DEBT.
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, create, incur, assume, guarantee, or otherwise become directly or
indirectly liable with respect to, any Funded Debt, except:
(a) the Notes;
(b) Funded Debt owing to the Company or a Wholly-Owned Subsidiary;
(c) Funded Debt outstanding on the date hereof and disclosed in
Schedule 5.15, and any renewals, extensions, and refundings
thereof so long as (i) no Default or Event of Default shall
exist, and (ii) there is no increase in the aggregate
principal amount thereof outstanding, in each case on the date
of any such renewal, extension or refunding; and
(d) additional Funded Debt so long as on the date the Company or
such Subsidiary becomes liable with respect to any such Funded
Debt and immediately after giving effect thereto and the
concurrent retirement of any other Funded Debt,
(i) no Default or Event of Default exists,
(ii) the sum of (A) Consolidated Senior Funded Debt, plus (B)
the Clean-Down Amount of Consolidated Current Debt, does
not exceed 55% of Consolidated Total Capitalization, and
(iii) the sum of (A) Consolidated Funded Debt, plus (B) the
Clean-Down Amount of Consolidated Current Debt, does not
exceed 65% of Consolidated Total Capitalization.
As used in this Section 10.4, the term "CLEAN-DOWN AMOUNT OF CONSOLIDATED
CURRENT DEBT" means, at any date, the lowest average daily amount of
Consolidated Current Debt outstanding during any period of thirty (30)
consecutive days occurring in the twelve consecutive calendar months most
recently ended as of such date (or on such date if such date shall be the last
day of a calendar month).
For the purposes of this Section 10.4, any Person becoming a Subsidiary
after the date hereof shall be deemed, at the time it becomes a Subsidiary, to
have incurred all of its then outstanding Funded Debt, and any Person extending,
renewing or refunding any Funded Debt shall be deemed to have incurred such
Funded Debt at the time of such extension, renewal or
25
refunding. For the avoidance of doubt, the parties hereto acknowledge and agree
that the covenant set forth in this Section 10.4 is to be applied on and as of
each date upon which the Company or any Subsidiary shall, directly or
indirectly, create, incur, assume, guarantee or otherwise become directly or
indirectly liable with respect to (or, as described in the immediately preceding
sentence, be deemed, directly or indirectly, to create, incur, assume, guarantee
or otherwise become directly or indirectly liable with respect to), any Funded
Debt.
10.5. INCURRENCE OF CURRENT DEBT.
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, create, incur, assume, guarantee, or otherwise become directly or
indirectly liable with respect to, any Current Debt on any date unless no
Default or Event of Default shall exist on such date and there shall have been a
period of thirty (30) consecutive days occurring in the twelve consecutive
calendar months most recently ended as of such date (or on such date if such
date shall be the last day of a calendar month) on each day of which
Consolidated Current Debt shall not have been in excess of the amount of Funded
Debt that the Company and the Subsidiaries could have incurred, but did not
incur, on such day in accordance with Section 10.4(d).
For the purposes of this Section 10.5, any Person becoming a Subsidiary
after the date hereof shall be deemed, at the time it becomes a Subsidiary, to
have incurred all of its then outstanding Current Debt, and any Person
extending, renewing or refunding any Current Debt shall be deemed to have
incurred such Current Debt at the time of such extension, renewal or refunding.
For the avoidance of doubt, the parties hereto acknowledge and agree that the
covenant set forth in this Section 10.5 is to be applied on and as of each date
upon which the Company or any Subsidiary shall, directly or indirectly, create,
incur, assume, guarantee or otherwise become directly or indirectly liable with
respect to (or, as described in the immediately preceding sentence, be deemed,
directly or indirectly, to create, incur, assume, guarantee or otherwise become
directly or indirectly liable with respect to), any Current Debt.
10.6. PRIORITY DEBT.
The Company will not, at any date, permit Priority Debt to exceed 25% 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).
10.7. 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 10.7), or
assign or otherwise convey any right to receive income or profits, except:
26
(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;
(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 10.7, so long as the Debt secured thereby can be
27
(i) incurred under Section 10.4(d), and
(ii) incurred and remain outstanding in accordance with the
requirements of Section 10.6.
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 10.7, 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 10.7 will constitute an Event of Default, whether or not provision
is made for an equal and ratable Lien pursuant to this Section 10.7.
10.8. 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
10.8(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
10.8(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.
28
(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
10.8(a) hereof,
(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.
10.9. 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 10.6 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 10.9, 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.
10.10. 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
29
engaged on the date of this Agreement as described in the Form 10-K filed for
the fiscal year ending April 30, 2003.
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
(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 10.9, 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 in an
aggregate outstanding principal amount of at least
$15,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other
30
condition exists, and as a consequence of such default
or condition such Indebtedness has become, or has been
declared due and payable before its stated maturity or
before its regularly scheduled dates of payment; 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
31
such standards or extension of any amortization period
is sought or granted under section 412 of the Code,
(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
(i) 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.
32
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 paragraph (g) or described
in clause (vi) of paragraph (g) by virtue of the fact that
such clause encompasses clause (i) of 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.
33
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 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
34
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 (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 substantially in the form of
such Note set forth in Exhibit 1. 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, 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.
35
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 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 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 or any Guaranty
Agreement, or by reason of being a holder of any Note, and (b) the costs and
expenses,
36
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 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 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.
37
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 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
38
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,
(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
39
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.
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
40
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 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.
41
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 consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
21.6. 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.
[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.
THE TRAVELERS INSURANCE COMPANY
By: /s/ Denise T. Duffy
----------------------------
Name: Denise T. Duffy
Title: Investment Officer
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Denise T. Duffy
----------------------------
Name: Denise T. Duffy
Title: Investment Officer
PRIMERICA LIFE INSURANCE COMPANY
By: /s/ Denise T. Duffy
----------------------------
Name: Denise T. Duffy
Title: Investment Officer
CITICORP INSURANCE AND INVESTMENT TRUST
BY: TRAVELERS ASSET MANAGEMENT INTERNATIONAL COMPANY LLC
By: /s/ Denise T. Duffy
----------------------------
Name: Denise T. Duffy
Title: Investment Officer
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By: /s/ Denise T. Duffy
----------------------------
Name: Denise T. Duffy
Title: Investment Officer
[Signature Page to Note Purchase Agreement]
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ William S. Engelking
----------------------------
Name: William S. Engelking
Title: Vice President
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
BY: PRUDENTIAL PRIVATE PLACEMENT INVESTORS, L.P., AS INVESTMENT ADVISOR
BY: PRUDENTIAL PRIVATE PLACEMENT INVESTORS, INC., ITS GENERAL PARTNER
By: /s/ William S. Engelking
----------------------------
Name: William S. Engelking
Title: Vice President
MINNESOTA LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
TRUSTMARK LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
AMERICAN FIDELITY ASSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
THE LAFAYETTE LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
[Signature Page to Note Purchase Agreement]
INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
EDUCATORS MUTUAL LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
GREAT WESTERN INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
----------------------------
Name: Robert W. Thompson
Title: Vice President
MODERN WOODMEN OF AMERICA
By: /s/ Nick S. Coin
----------------------------
Name: Nick S. Coin
Title: Treasurer and Investment Manager
[Signature Page to Note Purchase Agreement]
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PURCHASER NAME THE TRAVELERS INSURANCE COMPANY
- -------------- -------------------------------
Name in Which Note is Registered TRAL & CO.
Note Registration Number; Principal Amount R-1; $17,500,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information JP Morgan Chase
One Chase Manhattan Plaza
New York, NY 10081
ABA # 021-000-021
For: The Travelers Insurance Company
Consolidated Private Placement Account
Account # 910-2-587434
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments The Travelers Insurance Company
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions THE TRAVELERS INSURANCE COMPANY
By_________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number 06-0566090
Schedule A-1
PURCHASER NAME THE TRAVELERS LIFE AND ANNUITY COMPANY
- -------------- --------------------------------------
Name in Which Note is Registered TRAL & CO.
Note Registration Number; Principal Amount R-2; $7,500,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information JP Morgan Chase
One Chase Manhattan Plaza
New York, NY 10081
ABA # 021-000-021
For: The Travelers Insurance Company
Consolidated Private Placement Account
Account # 910-2-587434
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments The Travelers Life and Annuity Company
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices The Travelers Life and Annuity Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions THE TRAVELERS LIFE AND ANNUITY COMPANY
By__________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number 06-0904249
Schedule A-2
PURCHASER NAME THE TRAVELERS LIFE AND ANNUITY COMPANY
- -------------- --------------------------------------
Name in Which Note is Registered TRAL & CO.
Note Registration Number; Principal Amount R-3; $4,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information JP Morgan Chase
One Chase Manhattan Plaza
New York, NY 10081
ABA # 021-000-021
For: The Travelers Insurance Company
Separate Account TLAC
Account # 910-2-739365
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments The Travelers Life and Annuity Company
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices The Travelers Life and Annuity Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions THE TRAVELERS LIFE AND ANNUITY COMPANY
By__________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number 06-0904249
Schedule A-3
PURCHASER NAME PRIMERICA LIFE INSURANCE COMPANY
- -------------- --------------------------------
Name in Which Note is Registered PRIMERICA LIFE INSURANCE COMPANY
Note Registration Number; Principal Amount R-4; $5,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information JP Morgan Chase
One Chase Manhattan Plaza
New York, NY 10081
ABA # 021-000-021
For: Primerica Life Insurance Company
Account # 910-2-790079
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Primerica Life Insurance Company
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices Primerica Life Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions PRIMERICA LIFE INSURANCE COMPANY
By_________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number 04-1590590
Schedule A-4
PURCHASER NAME CITICORP INSURANCE AND INVESTMENT TRUST
- -------------- ---------------------------------------
Name in Which Note is Registered CITICORP INSURANCE AND INVESTMENT TRUST
Note Registration Number; Principal Amount R-5; $4,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information State Street Bank and Trust Company, N.A.
New York, NY
ABA # 026-009-166
BIC SBOSUS3N
DDA # 00044008
State Street Bank and Trust Company Australia Custody Clearing Account,
Sydney Account # 40436501
Ref: 7FGA
Citicorp Insurance and Investment Trust
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Citicorp Insurance and Investment Trust
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices Citicorp Insurance and Investment Trust
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions CITICORP INSURANCE AND INVESTMENT TRUST
By: Travelers Asset Management International Company LLC
By__________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number None
Schedule A-5
PURCHASER NAME NATIONAL BENEFIT LIFE INSURANCE COMPANY
- -------------- ---------------------------------------
Name in Which Note is Registered NATIONAL BENEFIT LIFE INSURANCE COMPANY
Note Registration Number; Principal Amount R-6; $2,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information JP Morgan Chase
One Chase Manhattan Plaza
New York, NY 10081
ABA # 021-000-021
For: National Benefit Life Insurance Company
Account # 910-2-790384
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments National Benefit Life Insurance Company
242 Trumbull Street, 5th Floor
Hartford, CT 06115-0449
Attn: Cashier
Fax: 860-308-8556
Address for All Other Notices National Benefit Life Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Private Placements
Fax: 860-308-8547
Other Instructions NATIONAL BENEFIT LIFE INSURANCE COMPANY
By___________________________
Name:
Title:
Instructions re Delivery of Notes The Travelers Insurance Company
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
Attn: Dan Kenney
Tax Identification Number 23-1618791
Schedule A-6
PURCHASER NAME THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- -------------- -------------------------------------------
Name in Which Note is Registered THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Note Registration Number; Principal Amount R-7; $14,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Bank of New York
New York, NY
ABA # 021-000-018
Account # 890-0304-391
Re: Security No! INV 10502! and
(See "Accompanying information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102-4077
Attn: Manager, Billings and Collections
with telephonic prepayment notices to:
Manager, Trade Management Group
Tel: 973-367-3141
Fax: 800-224-2278
Address for All Other Notices The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Prudential Plaza, Suite 5600
180 North Stetson Avenue
Chicago, IL 60601
Attn: Managing Director
Other Instructions THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By____________________________
Name:
Title: Vice President
Instructions for Delivery of Notes The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Prudential Plaza, Suite 5600
180 North Stetson Avenue
Chicago, IL 60601
Attn: Armando Gamboa
Tax Identification Number 22-1211670
Schedule A-7
PURCHASER NAME GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
- -------------- ------------------------------------------
Name in Which Note is Registered HARE & CO.
Note Registration Number; Principal Amount R-8; $14,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Bank of New York
ABA # 021-000-018
Beneficiary: IOC566 or GLA111566
Attn: PP P&I Department
Ref: General Electric Capital Assurance Company - PRU
Account # 127948
Re: Security No! INV 10502! and
(See "Accompanying information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments State Street
801 Pennsylvania
Kansas City, MO 64105
Attn: Klaus Diem
Account: General Electric Capital Assurance Company
Fax: 816-691-5593
Email: geam@statestreetkc.com
with a copy to:
Bank of New York
P.O. Box 19266
Newark, NJ 07195
Attn: PP P&I Department
Ref: General Electric Capital Assurance Company
Account # 127948
(See "Accompanying information" above)
Address for All Other Notices Prudential Private Placement Investors, L.P.
4 Gateway Center
100 Mulberry Street
Newark, NJ 07102
Attn: Albert Trank
Managing Director
Fax: 973-624-6432
Other Instructions GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: Prudential Private Placement Investors, L.P., as Investment
Advisor
By: Prudential Private Placement Investors, Inc., its General
Partner
By: _____________________________
Name:
Title: Vice President
Schedule A-8
PURCHASER NAME GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
- -------------- ------------------------------------------
Instructions for Delivery of Notes The Bank of New York
One Wall Street
3rd Floor, Window A
New York, NY 10286
Ref: General Electric Capital Assurance Company (GECA-PRU)
Account # 127948
with a copy of the above transmittal to:
Prudential Capital Group
4 Gateway Center
100 Mulberry Street, 7th Floor
Newark, NJ 07102
Attn: Manger, Trade Management
Tax Identification Number 91-6027719
Schedule A-9
PURCHASER NAME MINNESOTA LIFE INSURANCE COMPANY
- -------------- --------------------------------
Name in Which Note is Registered MINNESOTA LIFE INSURANCE COMPANY
Note Registration Number; Principal Amount R-9; $10,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Federal Reserve Bank of Boston
ABA # 011-001-234
BOS SAFE DEP
DDA # 048771
Account Name: Minnesota Life Insurance Company
Account Number: ADFF0106002
Cost Code: 1167
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Minnesota Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Fax: 651-223-5959
Address for All Other Notices Minnesota Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Fax: 651-223-5959
Other Instructions MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: _______________________
Name:
Title:
Instructions for Delivery of Notes Minnesota Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Nichol Harris
Tax Identification Number 41-0417830
Schedule A-10
PURCHASER NAME TRUSTMARK LIFE INSURANCE COMPANY
- -------------- --------------------------------
Name in Which Note is Registered ELL & CO.
Note Registration Number; Principal Amount R-10; $2,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Northern Chgo/Trust
ABA # 071-000-152
For further credit to: Account # 5186041000
For further credit to: Trustmark Life Insurance Company
Account # 26-11939
Income Collections
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Trustmark Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Address for All Other Notices Trustmark Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Other Instructions TRUSTMARK LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes Northern Trust Company of New York
40 Broad Street, 8th Floor
New York, NY 10004
Attn: Settlements for Account # 26-11939
Trustmark Life Insurance Company
Tax Identification Number 36-3421358
Schedule A-11
PURCHASER NAME AMERICAN FIDELITY ASSURANCE COMPANY
- -------------- -----------------------------------
Name in Which Note is Registered BOOTH & CO.
Note Registration Number; Principal Amount R-11; $2,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information First Fidelity Bank, N.A.
5800 N.W. 39th Street
Oklahoma City, OK 73122-2120
ABA # 103-002-691
For credit to: InvesTrust
Account # 1040120179
Attn: Tina Swaim
Ron Mitchell
Further credit to: American Fidelity Assurance Company
Account # 52010414
Attn: Trust Operations
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments American Fidelity Assurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Address for All Other Notices American Fidelity Assurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Other Instructions AMERICAN FIDELITY ASSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes Northern Trust Company of New York
40 Broad Street, 8th Floor
New York, NY 10004-2315
Attn: Settlements for Account # 1746957
American Fidelity Assurance Company
Tax Identification Number 73-0714500
Schedule A-12
PURCHASER NAME THE LAFAYETTE LIFE INSURANCE COMPANY
- -------------- ------------------------------------
Name in Which Note is Registered THE LAFAYETTE LIFE INSURANCE COMPANY
Note Registration Number; Principal Amount R-12; $1,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information National City Bank
ABA # 074-000-065
Account: 758138732
Lafayette Life Insurance Company
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments The Lafayette Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Address for All Other Notices The Lafayette Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Other Instructions THE LAFAYETTE LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes The Lafayette Life Insurance Company
1905 Teal Road
Lafayette, IN 47905
Attn: Tracy Gaylor
Douglas Kelsey
Investment Department
Tax Identification Number 35-0457540
Schedule A-13
PURCHASER NAME INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY
- -------------- --------------------------------------------------
Name in Which Note is Registered HARE & CO.
Note Registration Number; Principal Amount R-13; $1,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Bank of New York
ABA # 021-000-018
For credit to: BBK=IOC 363
For further credit to: Industrial-Alliance Pacific Life Insurance Company
Account # 270384
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Industrial-Alliance Pacific Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Address for All Other Notices Industrial-Alliance Pacific Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Other Instructions INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes BNY Western Trust Company
Two Union Square, Suite 250
601 Union Street
Seattle, WA 98101-2321
Attn: Deborah Saner
Tax Identification Number 98-0018913
Schedule A-14
PURCHASER NAME EDUCATORS MUTUAL LIFE INSURANCE COMPANY
- -------------- ---------------------------------------
Name in Which Note is Registered HARE & CO.
Note Registration Number; Principal Amount R-14; $500,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information First Union Bank
Philadelphia, PA
ABA # 031-201-467
A/C # 5014179770579
Attn: Mary C. Pitt
215-670-4542
Ref: Educators Mutual Life Insurance Company
Account # 13-00009-00
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Educators Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Address for All Other Notices Educators Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Other Instructions EDUCATORS MUTUAL LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes The Bank of New York
One Wall Street
3rd Floor, Window A
New York, NY 10286
Ref: Educators Mutual Life Insurance Company
Account # 13-00009-00
First Union Account # 071-395
Tax Identification Number 23-1500814
Schedule A-15
PURCHASER NAME GREAT WESTERN INSURANCE COMPANY
- -------------- -------------------------------
Name in Which Note is Registered MERRILL LYNCH FOR GREAT WESTERN INSURANCE COMPANY
Note Registration Number; Principal Amount R-15; $500,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank NY
ABA # 021-000-021
Account # 9304019012 / MLPFS
Ref: Great Western Insurance Company
Account # 70G-13700
Contact: Jeff Ferrari
201-557-1314
Re: see "Accompanying Information" below
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and interest)
of the payment being made:
Address for Notices Related to Payments Great Western Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North, A9-4538
St. Paul, MN 55101
Attn: Kay Rasmussen
Address for All Other Notices Great Western Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North, A9-4538
St. Paul, MN 55101
Attn: Kay Rasmussen
Other Instructions GREAT WESTERN INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: ________________________
Name:
Title:
Instructions for Delivery of Notes New York Window / DTCC
55 Water Street
New York, NY 10041
Attn: Butch Puazo
Ref: Great Western Ins. Co.
Account # 70G-13700
Tax Identification Number 87-0395954
Schedule A-16
PURCHASER NAME MODERN WOODMEN OF AMERICA
- -------------- -------------------------
Name in Which Notes are to be Registered MODERN WOODMEN OF AMERICA
Note Registration Number; Principal Amount R-16; $15,000,000
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Northern Trust Company
50 South LaSalle Street
Chicago, IL 60675
ABA # 071-000-152
Account Name: Modern Woodmen of America
Account #: 84352
Re: (see "Accompanying Information" below)
Accompanying Information Name of Company: J.M. SMUCKER COMPANY
Description of Security: 4.78% Senior Notes due June 1, 2014
PPN: 832696 B# 4
Due Date and Application (as among principal, make whole and
interest) of the payment being made:
Address for Notices Related to Payments Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Investment Accounting Department
Address for All Other Notices Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Investment Department
Email: Investment.Department@Modern-Woodmen.org
Other Instructions MODERN WOODMEN OF AMERICA
By______________________________
Name:
Title:
Instructions re Delivery of Notes Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Doug Pannier
Tax Identification Number 36-1493430
Schedule A-17
\
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:
"ACQUISITION" means the acquisition by the Company of International
Multifoods Corporation pursuant to the Agreement and Plan of Merger, dated March
7, 2004, by and among the Company, MIX and International Multifoods Corporation.
"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.
"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, to be entered into on or about June 17, 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 any of:
(a) (i) the failure of the Smucker Family to hold, in the aggregate,
not less than the greater of (A) 7.5% of the Special Voting Power of
all classes of Voting Stock of the Company and (B) not less than the
amount of the Special Voting Power of all classes of the Voting
Stock of the Company possessed by the Largest Other Shareholder, or
(ii) the failure of the Smucker Family to hold, in the
aggregate, not less than the greater of (A) 5% of the Ordinary
Voting Power of all classes of the Voting Stock of the Company and
(B) not less than the amount of Ordinary Voting Power of all classes
of the Voting Stock of the Company possessed by the Largest Other
Shareholder; or
(b) all or substantially all of the assets of the Company are sold
or otherwise transferred, in a single transaction or a series of related
transactions, to 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); or
(c) if, for any reason whatsoever, either Timothy P. Smucker or
Richard K. Smucker (or both) shall fail to serve on the board of directors
of the Company at any time; provided, that if either Timothy P. Smucker or
Richard K. Smucker (but not both) shall fail to serve on the board of
directors of the Company at any time, then with respect to this clause (c)
only, it shall not be deemed to constitute a Change of Control if such
individual is replaced as a director of the Company within one hundred
twenty (120) days of such event by an individual reasonably satisfactory
to the Required Holders.
"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.
Schedule B-2
"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 CURRENT DEBT" means, as of any date of determination, the
total of all Current 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 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 SENIOR FUNDED DEBT" means all Senior Funded Debt of the
Company and the Subsidiaries, 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 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.
Schedule B-3
"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 Closing Date) or related persons
constituting a group (as such term is used in Rule 13d-5 under the
Exchange Act as in effect on the Closing Date) 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.
"CURRENT 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 on demand or within one year from the date of the creation
thereof and is not directly or indirectly renewable or extendible at the option
of the obligor in respect thereof to a date one year or more from such date,
provided that (a) Debt outstanding under a revolving credit or similar agreement
which obligates the lender or lenders to extend credit over a period of one year
or more and (b) Current Maturities of Funded Debt shall constitute Funded Debt
and not Current Debt, even though such Debt by its terms matures on demand or
within one year from such date.
"CURRENT MATURITIES OF FUNDED DEBT" means, at any time and with respect to
any item of Funded Debt, the portion of such Funded Debt outstanding at such
time which by the terms of such Funded Debt or the terms of any instrument or
agreement relating thereto is due on demand or within one year from such time
(whether by sinking fund, other required prepayment or final payment at
maturity) and is not directly or indirectly renewable, extendible or refundable
at the option of the obligor under an agreement or firm commitment in effect at
such time to a date one year or more from such time.
"DEBT" means, with respect to any Person, without duplication:
(a) its liabilities for borrowed money;
(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
Schedule B-4
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 of New York
(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
Schedule B-5
that would occur or be required in connection with such conversion)
determined at the time of the disposition thereof, in good faith by
the Company.
"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:
(i) an appraiser of established reputation in appraising
property of the kind to be subject to such Transfer;
(ii) 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
(iii) an analysis prepared by the Company which in
addition to taking into account the standard set forth in this
definition prior to clause (i) 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 exclusive of the Disposition Value
of the real property of the Company located in Pottstown,
Pennsylvania, and the plant and equipment located thereon,
related to the "Mrs.'s Smith's" frozen pie business. Any such
evaluation shall be delivered to the holders of the
Schedule B-6
Notes together with an Officer's Certificate, signed by a
Senior Financial Officer, certifying as to the accuracy and
completeness of such evaluation.
"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.
"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
(a) the government of
(i) the United States of America or any state or other
political subdivision thereof, or
(ii) 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
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any
such government.
"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;
Schedule B-7
(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) as defined in Section 4.11,
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;
(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
Schedule B-8
(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.
"LARGEST OTHER SHAREHOLDER" means, with respect to either Voting Stock of
the Company having Special Voting Power or Voting Stock of the Company having
Ordinary Voting Power, the 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
the 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), other than the
Smucker Family, possessing Voting Stock of the Company with the greatest Special
Voting Power or the greatest Ordinary Voting Power, as the case may be.
"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.
"MIX" means MIX Acquisition Corporation, a Delaware corporation and
Wholly-Owned Subsidiary of the Company.
Schedule B-9
"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.
"NOTES" is defined in Section 1.1.
"OBLIGORS" means, collectively, the Company and each Subsidiary Guarantor.
"OFFEREE LETTER" 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.
"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.
Schedule B-10
"PRIORITY DEBT" means the sum of (a) all Debt of the Company secured by
Liens permitted by Section 10.7(g), (b) all Debt of Subsidiaries (other than (x)
Debt held by the Company or a Wholly-Owned Subsidiary or (y) Debt of MIX under
the Guaranty Agreement delivered pursuant to Section 4.11 and any Guaranty by a
Subsidiary Guarantor of the Debt evidenced by (1) this Agreement, (2) the Bank
Credit Agreement, so long as such Debt is subject to an intercreditor agreement,
in form and substance satisfactory to the Required Holders, and so long as the
holders of the Notes have the benefit of such intercreditor agreement with
respect to such Debt, (3) the 1999 Note Agreement, and (4) the 2000 Note
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 10.7) 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 10.8 or Section 10.9, 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.
"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).
Schedule B-11
"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 MIX 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.
"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.
"SOURCE" is defined in Section 6.2.
"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.
"SPECIAL VOTING POWER" means the voting power attributable to those shares
of Voting Stock of the Company entitled to the special voting rights set forth
in Division II, Section 2(a) of the Amended Articles of Incorporation of the
Company.
"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)
Schedule B-12
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, MIX and any 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.
"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
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.
"USA PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001 of the United States of America.
Schedule B-13
"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
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
The Subsidiary Guarantor, MIX Acquisition Corporation, was formed in
Delaware on March 5, 2004 and is a Wholly-Owned Subsidiary of the Company.
Schedule 4.9-1
SCHEDULE 5.3
DISCLOSURE MATERIALS
The SEC Division of Corporate Finance submitted a letter to the Company
dated March 3, 2004 regarding a review conducted by the SEC on the Company's
Form 10-K, filed July 24, 2003 and Form 10-Q filed December 11, 2003. The SEC
provided comments on the Company's financial statements and related disclosures
in management's discussion and analysis. In certain areas, the SEC requested
that the Company revise its filings, or respond to the SEC as to why its comment
is inapplicable or a revision is unnecessary. The Company responded to the SEC
Division of Corporate Finance in a letter dated March 22, 2004 and has agreed to
revise future filings on Form 10-K and Form 10-Q.
Schedule 5.3-1
SCHEDULE 5.4
ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES
OWNERSHIP
JURISDICTION OF -----------------------------
SUBSIDIARY INCORPORATION OWNED BY PERCENT OWNERSHIP
- ---------- ------------------ -------- -----------------
J.M. Smucker LLC Ohio Company 100%
Smucker Fruit Processing Company California Company 100%
J.M. Smucker (Pennsylvania), Inc. (formerly H. B. DeViney Company, Inc.) Pennsylvania Company 100%
Mary Ellen's, Incorporated Ohio Company 100%
The Dickinson Family, Inc. Ohio Company 100%
Smucker Quality Beverages, Inc. (formerly Knudsen & Sons, Inc.) ("SQB") California Company 100%
Juice Creations Co. Ohio SQB 100%
Santa Cruz Natural Incorporated California SQB 100%
After The Fall Products, Inc. Ohio SQB 100%
Knudsen & Sons, Inc. Ohio SQB 100%
Alternative Attitudes, Inc. Ohio SQB 100%
Rocket Juice Company (formerly Garratt & Gunn Ltd.) California SQB 100%
Smucker Latin America, Inc. (formerly J. M. Smucker (Canada), Inc.) ("SLA") Ohio Company 100%
J. M. Smucker de Mexico, S.A de C.V. Mexico, dom. DE SLA 100%
Smucker do Brasil Ltda. Brazil SLA 100%
Smucker Australia, Inc. ("SA")* Ohio Company 100%
Henry Jones Foods Pty. Ltd. (formerly Shawson Pty. Ltd.) ("HJF")* Victoria, Australia SA 100%
Hallco Pty. Ltd.* Victoria, Australia HJF 100%
Smucker Holdings, Inc. (formerly Mrs. Smith's, Inc.) Ohio Company 100%
Smucker U. K., Inc. Ohio Company 100%
J. M. Smucker (Canada) Inc. Ontario Company 100%
Smucker Hong Kong Limited Hong Kong Company 100%
Schedule 5.4-1
OWNERSHIP
JURISDICTION OF ---------------------------------
SUBSIDIARY INCORPORATION OWNED BY PERCENT OWNERSHIP
- ---------- --------------- -------- -----------------
Sunberry Farms, Inc. (formerly Gingham's, Inc.) Ohio Company 100%
Simply Smucker's, Inc. (formerly SAH, Inc.) Ohio Company 100%
Smucker Direct, Inc. Ohio Company 100%
JM Smucker (Scotland) Limited Scotland Company 100%
MIX Acquisition Corporation Delaware Company 100%
HJF Acquisition Corporation ("HJF ACQ.")* Delaware Company 100%
Ardmona Acquisition Corporation* Delaware HJF Acq. 100%
* The Company has entered into a definitive agreement to sell its Australia
food business to SPC Ardmona Ltd. The transaction is expected to close by
the end of June 2004.
Schedule 5.4-2
SCHEDULE 5.5
FINANCIAL STATEMENTS
1. 2003 Annual Report to Shareholders.
2. Form 10-K for the Fiscal Year Ended April 30, 2003.
3. Form 10-Q for the Quarter Ended January 31, 2004.
Schedule 5.5-1
SCHEDULE 5.8
CERTAIN LITIGATION
1. The Company is a defendant in 20 class action lawsuits related to its
Simply 100% Fruit product. The Dickinson Family, Inc., a Wholly-Owned
Subsidiary of the Company, has two class action lawsuits related to its
Dickinson 100% Fruit product. The complaints in these lawsuits generally
allege violations of state consumer fraud acts, unjust enrichment and
breach of an express warranty based on the allegation that Simply 100%
Fruit does not contain 100 percent fruit and it does not contain 100
percent of the fruit designated as the flavor (e.g., strawberry). The
complaints generally seek damages in the form of either a refund of the
purchase price or the difference between the price of Simply 100% Fruit
and lower priced the Company products. The Company believes these suits
are without merit and intends to vigorously defend these actions.
2. On April 1, 2003, the Fleming Companies, Inc. and numerous related
entities (collectively, "FLEMING") filed Voluntary Petitions for
bankruptcy in the Bankruptcy Court for the District of Delaware,
Bankruptcy Case No. 03-10945(MFW), under Chapter 11, Title 11 of the
United States Code (the "BANKRUPTCY CODE"). Since that date, Fleming has
continued to manage and operate its business and properties as a debtor in
possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. The
Company timely filed proofs of claim in the Fleming bankruptcy in excess
of $2 million for goods sold and owning as of the petition date. The
Company has also asserted a reclamation claim under Section 506 of the
Bankruptcy Code against Fleming in an amount in excess of $1.2 million. On
January 31, 2004, Fleming filed an adversary proceeding against the
Company, Adversary Proceeding No. 02-51553, to, inter alia, contest the
Company reclamation claim, to recover alleged preferential transfers, and
to recover alleged amounts owing by the Company to Fleming. The total
amount sought by Fleming in the adversary proceeding is in excess of $2
million. No discovery has yet occurred in the adversary proceeding.
Schedule 5.8-1
SCHEDULE 5.11
LICENSES, PERMITS, ETC.
None.
Schedule 5.11-1
SCHEDULE 5.14
USE OF PROCEEDS
The proceeds will be used to (i) finance the cash component of the
acquisition by the Company of International Multifoods Corporation as further
described in the Agreement and Plan of Merger, dated March 7, 2004 by and
between the Company, MIX and International Multifoods Corporation, together with
all agreements, exhibits, schedules, annexes and documents executed or delivered
in connection therewith, and the Form S-4/Proxy Statement of the Company dated
May 4, 2004, copies of which have been delivered to you, (ii) repay certain
International Multifoods Corporation Debt, or (iii) finance other business
activities as determined by the Company.
Schedule 5.14-1
SCHEDULE 5.15
EXISTING INDEBTEDNESS
SHORT-TERM DEBT
1. Letter of Intent for an uncommitted line of credit of up to the principal
amount of $40,000,000 through a Promissory Note to LaSalle Bank, N.A. (no
amount outstanding)
2. Promissory Note for an uncommitted line of credit of up to the principal
amount of $40,000,000 to KeyBank, N.A. (no amount outstanding)
3. Promissory Note for an uncommitted line of credit of up to the principal
amount of $25,000,000 to Fifth Third Bank, N.A. (no amount outstanding)
LONG-TERM DEBT
1. $75,000,000 in principal amount of 6.77% Senior Notes due June 1, 2009
2. $17,000,000 in principal amount of 7.70% Series A Senior Notes due
September 1, 2005
3. $33,000,000 in principal amount of 7.87% Series B Senior Notes due
September 1, 2007
4. $10,000,000 in principal amount of 7.94% Series C Senior Notes due
September 1, 2010
LETTERS OF CREDIT
1. Irrevocable standby Letter of Credit in principal amount of $5,372,000
issued by National City Bank to Lumbermens Mutual Casualty Company, dated
May 9, 2000, amended May 30, 2001
2. Irrevocable standby Letter of Credit in principal amount of $500,000
issued by National City Bank to the Commonwealth of Kentucky dated June 2,
2003
3. Irrevocable standby Letter of Credit in principal amount of $4,100,000
issued by Harris Bank to National Union Fire Insurance Company of
Pittsburgh, et al., dated May 7, 2004
INTERNATIONAL INTERCOMPANY LOANS
1. Promissory Note/Revolving Loan dated May 23, 1995 between J. M. Smucker de
Mexico, S.A. de C.V. and the Company in principal amount up to $5,000,000
U.S. payable upon demand by the holder
2. Promissory Note dated November 29, 1999 between Smucker do Brasil Ltda.
and Smucker Latin America, Inc. in principal amount of $5,000,000 U.S.,
payable upon demand by the holder
3. Promissory Note dated February 3, 2000 between Smucker do Brasil Ltda. and
Smucker Latin America, Inc. in principal amount of $500,000 U.S., payable
upon demand by the holder
4. Promissory Note dated October 25, 2002 between Smucker do Brasil Ltda. and
Smucker Latin America, Inc. in principal amount of $1,900,000 U.S.,
payable upon demand by the holder
5. Promissory Note dated December 30, 2002 between Smucker do Brasil Ltda.
and Smucker Latin America, Inc. in principal amount of $4,100,000 U.S.,
payable upon demand by the holder
Schedule 5.15-1
EXHIBIT 1
[FORM OF NOTE]
THE J. M. SMUCKER COMPANY
4.78% SENIOR NOTE DUE JUNE 1, 2014
No. R-[__] [Date]
$[_______] PPN: 832696 B# 4
FOR VALUE RECEIVED, the undersigned, THE J. M. SMUCKER COMPANY (herein
called the "COMPANY"), a corporation organized and existing under the laws of
the State of Ohio, hereby promises to pay to [________________________], or
registered assigns, the principal sum of [___________________] DOLLARS
($[________]) on June 1, 2014, 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
4.78% per annum from the date hereof, payable semiannually, on the first day of
February and August in each year, commencing with the February 1 or August 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) 6.78% or (ii) 2% over the rate of
interest publicly announced from time to time by JPMorgan Chase Bank 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 the 4.78% Senior Notes (herein called the "NOTES")
issued pursuant to the Note Purchase Agreement, dated as of May 27, 2004 (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 1-1
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.
This Note is 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 1-2
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL
FOR THE COMPANY AND MIX
[COMPANY LETTERHEAD]
May 27, 2004
To the Persons Listed
on Annex 1 hereto
Re: $100,000,000 4.78% Senior Notes due June 1, 2014
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement (collectively, the "NOTE
PURCHASE AGREEMENT"), dated as of May 27, 2004, between The J. M. Smucker
Company, an Ohio corporation (the "COMPANY"), and each of you, pursuant to which
the Company has issued to you today its 4.78% Senior Notes due June 1, 2014, in
the aggregate principal amount of $100,000,000. Unless otherwise defined herein,
all terms used herein that are defined in the Note Purchase Agreement have the
respective meanings specified in the Note Purchase Agreement. This letter is
being delivered to you in satisfaction of the condition set forth in Section
4.4(a) of the Note Purchase Agreement and with the understanding that you are
purchasing the 4.78% Senior Notes due June 1, 2014 in reliance on the opinions
expressed herein.
I am the Vice President, General Counsel and Secretary of the Company, and
the Secretary of MIX Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of the Company ("SUBSIDIARY GUARANTOR"), and have acted as
counsel for the Company and the Subsidiary Guarantor in connection with the
transactions contemplated by the Note Purchase Agreement and the Guaranty
Agreement (as defined below).
In acting as such counsel, I have examined:
(a) an executed copy of the Note Purchase Agreement;
(b) executed copies of each of the Company's 4.78% Senior Notes due
June 1, 2014, each dated the date hereof, in the form of Exhibit 1 to the
Note Purchase Agreement and registered in the names, in the principal
amounts and with the registration numbers set forth in Schedule A to the
Note Purchase Agreement (collectively, the "NOTES");
(c) an executed copy of the Guaranty Agreement, dated as of May 27,
2004 (the "GUARANTY AGREEMENT"), pursuant to which the Subsidiary
Guarantor guarantees the obligations of the Company under and in respect
of the Notes and the Note Purchase Agreement pursuant to the provisions
thereof;
Exhibit 4.4(a)-1
(d) a long-form good standing certificate for the Company from the
State of Ohio, and foreign good standing certificates for the Company from
each of the states where the Company is qualified to do business;
(e) a long-form good standing certificate for the Subsidiary
Guarantor from the State of Delaware;
(f) a copy of the Articles of Incorporation of the Company, as
amended and in effect on the date hereof, certified by the State of Ohio,
and a copy of the Regulations of the Company, as amended and in effect on
the date hereof, and the resolutions adopted by the board of directors of
the Company authorizing the Note Purchase Agreement and the Notes, as
certified by the Secretary of the Company;
(g) a copy of the Certificate of Incorporation of the Subsidiary
Guarantor, as in effect on the date hereof, certified by the State of
Delaware, and a copy of the By-Laws of the Subsidiary Guarantor, as in
effect on the date hereof, and the resolutions adopted by the board of
directors of the Subsidiary Guarantor authorizing the Guaranty Agreement,
as certified by the Secretary of the Subsidiary Guarantor;
(h) a letter to Bingham McCutchen LLP and the Company from William
Blair & Company, L.L.C., dated the date hereof, describing the manner of
the offering of the Notes (the "OFFEREE LETTER"); and
(i) originals, or copies certified or otherwise identified to my
satisfaction, of such other documents, records, instruments and
certificates of public officials and officers and representatives of the
Company and the Subsidiary Guarantor as to factual matters as I have
deemed necessary or appropriate to enable me to render this opinion.
In rendering my opinion, I have assumed that all signatures (other than
signatures of officers and directors of the Company and the Subsidiary
Guarantor) are genuine, that all documents submitted to me as originals are
genuine, that all copies submitted to me as copies conform to the originals,
that all natural Persons have legal capacity and, as to documents executed by or
on behalf of Persons other than the Company or the Subsidiary Guarantor, that
each such Person executing documents had the power to enter into and perform its
obligations under such documents and that such documents have been duly
authorized, executed and delivered by, and are binding upon and enforceable
against, such Persons. I have no actual knowledge of any information that would
indicate that any of my assumptions are invalid.
In rendering my opinion, I have relied, to the extent I deem necessary and
proper, on:
(i) warranties and representations as to certain factual matters
contained in the Note Purchase Agreement; and
(ii) the Offeree Letter.
I have no actual knowledge of any material inaccuracies in any of the
facts contained in the documents listed in item (i) or item (ii) above.
I am admitted to the practice of law solely in the State of Ohio and the
opinions expressed herein are limited to the laws of the State of Ohio, the
General Corporation Law of the State of Delaware and to the federal law of the
United States. No opinion is expressed herein as
Exhibit 4.4(a)-2
to the laws of any other jurisdiction. I call your attention to the fact that
the Note Purchase Agreement, the Notes and the Guaranty Agreement are governed
by the laws of the State of New York. In rendering the opinions in paragraphs 6
and 7 below, I have assumed that the laws of the State of New York are the same
as the laws of the State of Ohio (excluding choice of law rules, as to which I
express no opinion).
Based on the foregoing, and subject to the further assumptions, exceptions
and limitations set forth below, it is my opinion that:
1. Each of the Company and the Subsidiary Guarantor is a corporation,
validly existing and in good standing under the laws of the state of its
incorporation and has all requisite corporate power and authority to carry
on its business as presently conducted and own its property.
2. Each of the Company and the Subsidiary Guarantor is qualified and is
in good standing as a foreign corporation in each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the ability of
the Company to perform its obligations under the Note Purchase Agreement
and the Notes or the Subsidiary Guarantor to perform its obligations under
the Guaranty Agreement.
3. To the best of my knowledge after due inquiry, there is no judgment,
order, action, suit, proceeding, inquiry, order or investigation, at law
or in equity, before any court or governmental authority, arbitration
board or tribunal, pending or threatened against the Company, the
Subsidiary Guarantor or any of their respective properties which would
have a material adverse effect on the ability of the Company to perform
its obligations under the Note Purchase Agreement and the Notes or the
Subsidiary Guarantor to perform its obligations under the Guaranty
Agreement.
4. The Company has the requisite corporate power and authority to
execute and deliver each of the Note Purchase Agreement and the Notes and
to perform its obligations set forth in each of the Note Purchase
Agreement and the Notes. The Company has the requisite corporate power and
authority to offer, issue and sell the Notes.
5. The Subsidiary Guarantor has the requisite corporate power and
authority to execute and deliver the Guaranty Agreement and to perform its
obligations set forth in the Guaranty Agreement.
6. Each of the Note Purchase Agreement and the Notes has been duly
authorized by all necessary corporate action on the part of the Company
(no action on the part of the shareholders of the Company being required
with respect thereto), has been executed and delivered by one or more duly
authorized officers of the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
Exhibit 4.4(a)-3
7. The Guaranty Agreement has been duly authorized by all necessary
corporate action on the part of the Subsidiary Guarantor (no action on the
part of the shareholders of the Subsidiary Guarantor being required with
respect thereto), has been executed and delivered by one or more duly
authorized officers of the Subsidiary Guarantor and constitutes a legal,
valid and binding obligation of the Subsidiary Guarantor, enforceable
against the Subsidiary Guarantor in accordance with its terms.
8. The execution and delivery by the Company of each of the Note
Purchase Agreement and the Notes, the offer, issue and sale of the Notes
by the Company and the performance by the Company of its obligations under
the Note Purchase Agreement and the Notes will not conflict with,
constitute a violation of, result in a breach of any provision of,
constitute a default under, or result in the creation or imposition of any
Lien upon any of the property of the Company pursuant to its Articles of
Incorporation or Regulations, any applicable statute, rule or regulation
to which the Company is subject, or any agreement or instrument relating
to the borrowing of money to which the Company is a party or by which its
property may be bound.
9. The execution and delivery by the Subsidiary Guarantor of the
Guaranty Agreement and the performance by the Subsidiary Guarantor of its
obligations under the Guaranty Agreement will not conflict with,
constitute a violation of, result in a breach of any provision of,
constitute a default under, or result in the creation or imposition of any
Lien upon any of the property of the Subsidiary Guarantor pursuant to its
Certificate of Incorporation or By-Laws, any applicable statute, rule or
regulation to which the Subsidiary Guarantor is subject, or any agreement
or instrument relating to the borrowing of money to which the Subsidiary
Guarantor is a party or by which its property may be bound.
10. Other than routine filings with the Securities and Exchange
Commission, all consents, approvals and authorizations of, and all
designations, declarations, filings, registrations, qualifications and
recordations with, Governmental Authorities required on the part of the
Company and the Subsidiary Guarantor in connection with the execution and
delivery of each of the Note Purchase Agreement, the Notes and the
Guaranty Agreement, the offer, issue and sale of the Notes and the use of
the proceeds thereof have been obtained.
11. Based upon the accuracy of the terms of the Offeree Letter and the
accuracy of each of your representations and warranties set forth in the
Note Purchase Agreement, neither the issuance and sale of the Notes to
each of you, under the circumstances contemplated by the Note Purchase
Agreement, nor the entering into the Guaranty Agreement, is subject to the
registration requirements under the Securities Act of 1933, and neither
the Company nor the Subsidiary Guarantor is required to qualify an
indenture with respect to the Notes under the Trust Indenture Act of 1939,
as amended.
12. Neither the issuance of the Notes nor the intended use of the
proceeds of the Notes (as set forth in Section 5.14 of the Note Purchase
Agreement)will violate Regulations T, U or X of the Federal Reserve Board.
Exhibit 4.4(a)-4
13. Neither the Company nor the Subsidiary Guarantor is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or a "holding company" or an "affiliate" of a "holding company,"
or a "subsidiary company" of a "holding company," or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
All opinions herein contained with respect to the enforceability of
agreements and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including, without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought; and
(b) the enforceability of certain terms provided in the Note
Purchase Agreement, the Notes and the Guaranty Agreement may be limited by
applicable bankruptcy, reorganization, arrangement, insolvency, moratorium
or similar laws affecting the enforcement of creditors' rights generally
as at the time in effect, and general principles of equity and the
discretion of a court in granting equitable remedies (whether
enforceability is considered in a proceeding at law or in equity).
I acknowledge that this opinion is being issued at the request of the
Company pursuant to paragraph 4.4(a) of the Note Purchase Agreement and I agree
that you and each of your respective successors and assigns (including, without
limitation, subsequent holders of the Notes) may rely on this opinion as if it
were addressed to such successor and assign. Bingham McCutchen LLP may rely on
this opinion for the sole purpose of rendering its opinion to be rendered
pursuant to paragraph 4.4(b) of the Note Purchase Agreement.
Very truly yours,
M. Ann Harlan
Vice President, General Counsel
and Secretary
Exhibit 4.4(a)-5
ANNEX 1
PURCHASERS
Exhibit 4.4(a)-6
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
FOR THE PURCHASERS
[BINGHAM LETTERHEAD]
May 27, 2004
To each of the Purchasers listed on the attached Annex 1
RE: THE J. M. SMUCKER COMPANY
$100,000,000 4.78% Senior Notes due June 1, 2014
Ladies and Gentlemen:
We have acted as special counsel to each of you (collectively, the
"PURCHASERS") in connection with that certain Note Purchase Agreement, dated as
of May 27, 2004 (the "NOTE PURCHASE AGREEMENT"), between The J. M. Smucker
Company, an Ohio corporation (the "COMPANY"), and each of the Purchasers, which
provides, among other things, for the issuance and sale by the Company of the
Company's 4.78% Senior Notes (the "NOTES") due June 1, 2014, in the aggregate
principal amount of $100,000,000.
The capitalized terms used herein and not defined herein have the meanings
assigned to them by or pursuant to the terms of the Note Purchase Agreement.
This opinion is delivered to each of the Purchasers pursuant to Section 4.4(b)
of the Note Purchase Agreement. Our representation of the Purchasers has been as
special counsel for the purposes stated above.
In connection with this opinion, we have examined originals or copies of
the following documents:
(i) the Note Purchase Agreement;
(ii) the Notes;
(iii) the Guaranty Agreement, dated as of the date hereof (the
"GUARANTY AGREEMENT") by MIX Acquisition Corporation, a Delaware
corporation (the "SUBSIDIARY GUARANTOR" and together with the Company,
collectively, the "OBLIGORS"), in favor of each of the Purchasers;
(iv) a certificate of the Secretary of the Company, dated the date
hereof, delivered pursuant to Section 4.3(b) of the Note Purchase
Agreement certifying, among other things, that the attached certificate of
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 2
incorporation and by-laws of the Company and those certain resolutions
passed by the Board of Directors of the Company authorizing participation
in the transactions contemplated by the Financing Documents (as
hereinafter defined) to which it is a party, are true, complete and
correct copies thereof and are in full force and effect, and as to the
incumbency and specimen signatures of certain officers;
(v) a certificate of the Secretary of the Subsidiary Guarantor,
dated the date hereof, delivered pursuant to Section 4.3(c) of the Note
Purchase Agreement certifying, among other things, that the attached
certificate of incorporation and by-laws or other governing documents of
the Subsidiary Guarantor and those certain resolutions passed by the Board
of Directors of the Subsidiary Guarantor authorizing participation in the
transactions contemplated by the Financing Documents to which the
Subsidiary Guarantor is a party, are true, complete and correct copies
thereof and are in full force and effect, and as to the incumbency and
specimen signatures of certain officers;
(vi) an Officer's Certificate of the Company, dated the date hereof,
with respect to the matter set forth therein, delivered pursuant to
Section 4.3(a) of the Note Purchase Agreement;
(vii) a cross receipt acknowledging payment and receipt of the
purchase price for the Notes;
(viii) a letter from William Blair & Company L.L.C., dated May 25,
2004, making certain representations with respect to the manner in which
the Notes were offered (the "OFFEREE LETTER"); and
(ix) the opinion of M. Ann Harlan, General Counsel of the Company
and counsel for the Subsidiary Guarantor, dated the date hereof and
delivered to the Purchasers pursuant to Section 4.4(a) of the Note
Purchase Agreement.
The documents specified in clauses (i) through (iii) hereof, inclusive,
are referred to herein, collectively, as the "FINANCING DOCUMENTS." This opinion
is based entirely upon our examination of the documents listed in the preceding
paragraph and we have made no other documentary review or investigation for
purposes of this opinion. Based on such investigation as we have deemed
appropriate, the opinion referred to in clause (ix) above is satisfactory in
form and scope to us, and, in our opinion, you are justified in relying thereon.
As to all matters of fact (including factual conclusions and
characterizations and descriptions of purpose, intention or other state of
mind), we
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 3
have relied, with the Purchasers' permission, entirely upon (1) the
representations and warranties of the Obligors and the Purchasers set forth in
the Note Purchase Agreement and the Guaranty Agreement, (2) the correctness of
all statements set forth in the certificates described in clauses (iv) through
(vi) above, and (3) the Offeree Letter, and have assumed, without independent
inquiry, the accuracy of such representations, warranties, certificates and
letter.
We have assumed the genuineness of all signatures, the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
the legal competence of each individual executing any document and that each
Person executing the Financing Documents validly exists, has the power,
authority and legal right under its articles or certificate of incorporation,
by-laws and other governing organizational documents, and under applicable
corporate or other enterprise legislation and other applicable laws, as the case
may be, to enter into and perform its obligations under the Financing Documents,
and is qualified to do business and in good standing under the laws of its
jurisdiction of incorporation or organization and each jurisdiction where such
qualification is required generally or is necessary in order for such party to
enforce its rights under such documents, and that such documents have been duly
authorized, executed and delivered by, and, as to Persons other than the
Obligors, are binding upon and enforceable against, such Persons. In addition,
we have relied upon the Offeree Letter without independent investigation.
For purposes of this opinion, we have made such examination of law as we
have deemed necessary. This opinion is limited solely to the internal
substantive laws of the State of New York as applied by courts located in the
State of New York without regard to choice of law (except to the extent
addressed in paragraph 5 below) and the federal laws of the United States of
America (in each case, except for federal and state tax, utilities and antitrust
laws, as to which we express no opinion in this letter), and we express no
opinion as to the laws of any other jurisdiction. In addition, we note that the
Financing Documents contain provisions stating that they are to be governed by
the laws of the State of New York (a "CHOICE OF LAW PROVISION"). Except to the
extent addressed below in paragraph 5, no opinion is given herein as to any
Choice of Law Provision, or otherwise as to the choice of law or internal
substantive rules of law that any court or other tribunal may apply to the
transactions contemplated by the Financing Documents. Except as set forth in
paragraph 4 below, we express no opinions as to any securities or "blue sky"
laws of any jurisdiction.
Our opinion is further subject to the following exceptions, qualifications
and assumptions, all of which we understand to be acceptable to the Purchasers:
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 4
(a) The enforcement of any obligations of any Person under the
Financing Documents or otherwise may be limited by or subject to
bankruptcy, insolvency, reorganization, moratorium, marshaling or other
laws and rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to waivers
of debtors' or guarantors' rights), and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws of
any of the obligations of any Person, whether under the Financing
Documents or otherwise.
(b) We express no opinion as to the availability of any specific or
equitable relief of any kind.
(c) The enforcement of any of the Purchasers' rights may in all
cases be subject to an implied duty of good faith and fair dealing and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and will be subject to a
duty to act in a commercially reasonable manner.
(d) We express no opinion as to the effect of suretyship defenses,
or defenses in the nature thereof, with respect to the obligations of the
Subsidiary Guarantor or any other applicable guarantor, joint obligor,
surety, accommodation party or other secondary obligor.
(e) We express no opinion as to the enforceability of any particular
provision of any of the Financing Documents relating to or constituting
(i) waivers of rights to object to jurisdiction or venue, consents to
jurisdiction or venue, or waivers of rights to (or methods of) service of
process, (ii) waivers of rights to trial by jury, or other rights or
benefits bestowed by operation of law, (iii) waivers of any applicable
defenses, setoffs, recoupments, or counterclaims, (iv) waiver or
variations of legal provisions or rights that are not capable of waiver or
variation under applicable law, or (v) exculpation or exoneration clauses,
clauses relating to rights of indemnity or contribution, and clauses
relating to releases or waivers of unmatured claims or rights.
(f) Our opinion in paragraph 3 below is based solely on a review of
generally applicable laws of the State of New York and the United States
of America and not on any search with respect to, or review of, any
orders, decrees, judgments or other determinations specifically applicable
to any Obligor.
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 2
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring
after the date hereof on the matters addressed in this opinion letter, and
we assume no responsibility to inform you of additional or changed facts,
or changes in law, of which we may become aware.
Based upon the foregoing, and subject to the limitations and
qualifications set forth below, we are of the opinion that:
1. Each of the Note Purchase Agreement and the Notes constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms. The Guaranty Agreement
constitutes the legal, valid and binding obligation of the Subsidiary Guarantor,
enforceable against it in accordance with the terms thereof.
2. The execution and delivery by the Company of the Note Purchase
Agreement and the Notes, and the sale of the Notes and compliance by the Company
with the provisions thereof, will not constitute a violation of any law,
statute, rule or regulation of the State of New York. The execution and delivery
by the Subsidiary Guarantor of the Guaranty Agreement and compliance by the
Subsidiary Guarantor with the provisions thereof will not constitute a violation
of any law, statute, rule or regulation of the State of New York.
3. No consent, approval or authorization of, or designation, declaration,
filing, registration, qualification or recordation with, any Governmental
Authority in respect of the Company or the Subsidiary Guarantor is required to
be obtained or effected under the laws of the State of New York or the United
States of America in connection with (a) the execution and delivery by the
Company of the Note Purchase Agreement or the Notes, (b) the offer, issue, sale
and delivery of the Notes by the Company under the circumstances contemplated by
the Note Purchase Agreement, or (c) the execution and delivery by the Subsidiary
Guarantor of the Guaranty Agreement.
4. Under the circumstances contemplated by the Note Purchase Agreement,
neither the offer and sale by the Company of the Notes delivered to the
Purchasers today nor the issuance and delivery by the Subsidiary Guarantor of
the Guaranty Agreement to the Purchasers requires registration under the
Securities Act of 1933, as amended, and the Company is not required to qualify
an indenture in respect of the issuance of the Notes under the Trust Indenture
Act of 1939, as amended.
5. The Choice of Law Provisions are enforceable in accordance with New
York General Obligations Law section 5-1401, as applied by a New York
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 6
State court or a federal court sitting in New York and applying New York choice
of law principles.
To each of the Purchasers listed on the attached Annex 1
May 27, 2004
Page 7
This opinion is delivered solely to the Purchasers and for the Purchasers'
benefit in connection with the Financing Documents and may not be relied upon by
the Purchasers for any other purpose or relied upon by any other person or
entity (other than future holders of Notes acquired in accordance with the terms
of the Note Purchase Agreement) for any reason without our prior written
consent.
Very truly yours,
BINGHAM McCUTCHEN LLP
ANNEX 1
PURCHASERS
THE TRAVELERS INSURANCE COMPANY
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
THE TRAVELERS LIFE AND ANNUITY COMPANY
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
PRIMERICA LIFE INSURANCE COMPANY
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
CITICORP INSURANCE AND INVESTMENT TRUST
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
NATIONAL BENEFIT LIFE INSURANCE COMPANY
242 Trumbull Street, 7th Floor
Hartford, CT 06115-0449
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
c/o Prudential Capital Group
Two Prudential Plaza, Suite 5600
180 North Stetson Avenue
Chicago, IL 60601
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
c/o Prudential Private Placement Investors, L.P.
4 Gateway Center
100 Mulberry Street
Newark, NJ 07102
MINNESOTA LIFE INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
TRUSTMARK LIFE INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Exhibit 4.4(b)-1
AMERICAN FIDELITY ASSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
THE LAFAYETTE LIFE INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
EDUCATORS MUTUAL LIFE INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
GREAT WESTERN INSURANCE COMPANY
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
MODERN WOODMEN OF AMERICA
1701 First Avenue
Rock Island, IL 61201
Exhibit 4.4(b)-2
EXHIBIT 4.11
FORM OF GUARANTY AGREEMENT
This GUARANTY AGREEMENT (as the same may hereafter be amended,
supplemented or otherwise modified, this "GUARANTY"), dated as of May 27, 2004,
is by MIX ACQUISITION CORPORATION, a Delaware corporation (together with its
successors and assigns, the "GUARANTOR,") in favor of the Noteholders (defined
below).
RECITALS:
WHEREAS, the Guarantor is a Wholly-Owned Subsidiary of The J.M. Smucker
Company, an Ohio corporation (together with its successors and assigns, the
"COMPANY");
WHEREAS, the Company has entered into a certain Note Purchase Agreement,
dated as of the date hereof (as may be amended, modified, restated or replaced
from time to time, the "NOTE PURCHASE AGREEMENT"), with each of the purchasers
listed on Schedule A attached thereto (collectively, the "PURCHASERS," and
together with their successors and assigns including, without limitation, future
holders of the Notes (defined below), herein collectively referred to as the
"NOTEHOLDERS"), pursuant to which the Company, among other things, is issuing to
the Purchasers its 4.78% Senior Notes due June 1, 2014, in the aggregate
principal amount of $100,000,000 (as may be amended or modified, from time to
time, the "NOTES"); and
WHEREAS, to induce each Purchaser to purchase the Notes, the Guarantor is
required pursuant to the Note Purchase Agreement to guaranty unconditionally all
of the obligations of the Company under and in respect of the Notes and the Note
Purchase Agreement pursuant to the terms and provisions hereof.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
1. DEFINITIONS.
All capitalized terms used herein and not defined herein have the
respective meanings given them in the Note Purchase Agreement.
2. GUARANTY.
2.1. GUARANTEED OBLIGATIONS.
The Guarantor, in consideration of the execution and delivery of the Note
Purchase Agreement and the purchase of the Notes by the Purchasers, hereby
irrevocably, unconditionally and absolutely guarantees, on a continuing basis,
to each Noteholder as and for the Guarantor's own debt, until final and
indefeasible payment of the amounts referred to in clause (a) below has been
made:
(a) the due and punctual payment by the Company of the principal of,
and the Make-Whole Amount (if any) and interest on, the Notes at any time
outstanding and the due and punctual payment of all other amounts payable,
and all other Indebtedness owing, by the Company to the Noteholders under
the Note Purchase Agreement and the Notes (including, without limitation,
any monetary obligations incurred during the pendency of any bankruptcy,
insolvency, winding-up, receivership or other similar proceeding
regardless of whether allowed or allowable in such proceeding including,
without limitation, interest accrued on the Notes during any such
proceeding), in each case when and as the same shall become due and
payable, whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise, all in accordance with the terms
and provisions hereof and thereof; it being the intent of the Guarantor
that the guarantee set forth herein shall be a continuing guarantee of
payment and not a guarantee of collection; and
(b) the punctual and faithful performance, keeping, observance, and
fulfillment by the Company of all duties, agreements, covenants and
obligations of the Company contained in the Note Purchase Agreement and
the Notes.
All of the obligations set forth in clause (a) and clause (b) of this
Section 2.1 are referred to herein as the "GUARANTEED OBLIGATIONS."
2.2. PAYMENTS AND PERFORMANCE.
In the event that the Company fails to make, on or before the due date
thereof, any payment to be made in respect of the Guaranteed Obligations or if
the Company shall fail to perform, keep, observe, or fulfill any other
obligation referred to in clause (a) or clause (b) of Section 2.1 in the manner
provided in the Note Purchase Agreement and the Notes, the Guarantor shall cause
forthwith to be paid the moneys, or to be performed, kept, observed, or
fulfilled each of such obligations, in respect of which such failure has
occurred in accordance with the terms and provisions of the Note Purchase
Agreement and the Notes. In furtherance of the foregoing, if an Event of Default
shall exist under paragraph (g) or (h) of Section 11 of the Note Purchase
Agreement, all of the Guaranteed Obligations shall forthwith become due and
payable without notice, regardless of whether the acceleration of the Notes
shall be stayed, enjoined, delayed or otherwise prevented.
Nothing shall discharge or satisfy the obligations of the Guarantor
hereunder except the full and final performance and indefeasible payment of the
Guaranteed Obligations.
2.3. RELEASES.
The Guarantor consents and agrees that, without any notice whatsoever to
or by the Guarantor and without impairing, releasing, abating, deferring,
suspending, reducing, terminating or otherwise affecting the obligations of the
Guarantor hereunder, each Noteholder, by action or inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one
2
or more of the Note Purchase Agreement, the Notes, or any other guaranty
or agreement or instrument related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or
more of the Notes;
(c) grant waivers, extensions, consents and other indulgences of any
kind whatsoever to the Company, the Guarantor or any other Person liable
in any manner in respect of all or any part of the Guaranteed Obligations;
(d) amend, modify or supplement in any manner whatsoever and at any
time (or from time to time) any one or more of the Note Purchase
Agreement, the Notes, any other guaranty or any agreement or instrument
related thereto or hereto;
(e) release or substitute any one of more of the endorsers or any
other guarantors of the Guaranteed Obligations whether parties hereto or
not; and
(f) sell, exchange, release, accept, surrender or enforce rights in,
or fail to obtain or perfect or to maintain, or cause to be obtained,
perfected or maintained, the perfection of any Lien or other security
interest or charge on, by action or inaction, any property at any time
pledged or granted as security in respect of the Guaranteed Obligations,
whether so pledged or granted by the Company, the Guarantor or any other
Person.
The Guarantor hereby ratifies and confirms any such action specified in
this Section 2.3 and agrees that the same shall be binding upon the Guarantor,
whether or not the Guarantor shall have consented thereto or received notice
thereof. The Guarantor hereby waives any and all defenses, counterclaims or
offsets which the Guarantor might or could have by reason thereof.
2.4. WAIVERS.
To the fullest extent permitted by law, the Guarantor hereby waives:
(a) notice of acceptance of this Guaranty;
(b) notice of any purchase or acceptance of the Notes under the Note
Purchase Agreement, or the creation, existence or acquisition of any of
the Guaranteed Obligations, subject to the Guarantor's right to make
inquiry of each Noteholder to ascertain the amount of the Guaranteed
Obligations at any reasonable time;
(c) notice of the amount of the Guaranteed Obligations, subject to
the Guarantor's right to make inquiry of each Noteholder to ascertain the
amount of the Guaranteed Obligations at any reasonable time;
(d) notice of adverse change in the financial condition of the
Company or any other guarantor or any other fact that might increase the
Guarantor's risk hereunder;
3
(e) notice of presentment for payment, demand, protest, and notice
thereof as to the Notes or any other instrument;
(f) notice of any Default or Event of Default;
(g) all other notices and demands to which the Guarantor might
otherwise be entitled (except if such notice or demand is specifically
otherwise required to be given to the Guarantor under this Guaranty);
(h) the right by statute or otherwise to require any or each
Noteholder to institute suit against the Company, the Guarantor or any
other guarantor or to exhaust the rights and remedies of any or each
Noteholder against the Company, the Guarantor, or any other guarantor, the
Guarantor being bound to the payment of each and all Guaranteed
Obligations, whether now existing or hereafter accruing, as fully as if
such Guaranteed Obligations were directly owing to each Noteholder by the
Guarantor;
(i) any defense arising by reason of any disability or other defense
(other than the defense that the Guaranteed Obligations shall have been
fully and finally performed and indefeasibly paid) of the Company or by
reason of the cessation from any cause whatsoever of the liability of the
Company in respect thereof;
(j) any stay (except in connection with a pending appeal),
valuation, appraisal, redemption or extension law now or at any time
hereafter in force that, but for this waiver, might be applicable to any
sale of property of the Guarantor made under any judgment, order or decree
based on the Note Purchase Agreement, the Notes or this Guaranty, and the
Guarantor covenants that it will not at any time insist upon or plead, or
in any manner claim or take the benefit or advantage of, any such law; and
(k) at all times prior to the full and final performance and
indefeasible payment of the Guaranteed Obligations, any claim of any
nature arising out of any right of indemnity, contribution, reimbursement,
indemnification or any similar right or any claim of subrogation (whether
such right or claim arises under contract, common law or statutory or
civil law) arising in respect of any payment made under this Guaranty or
in connection with this Guaranty, against the Company or the Guarantor or
the estate of the Company (including Liens on the property of the Company
or the estate of the Company or the Guarantor), in each case whether or
not the Company or the Guarantor at any time shall be the subject of any
proceeding brought under any bankruptcy law, and the Guarantor further
agrees that it will not file any claims against the Company or the
Guarantor or the estate of the Company or the Guarantor in the course of
any such proceeding or otherwise, and further agrees that each Noteholder
may specifically enforce the provisions of this clause (k).
2.5. MARSHALING; INVALID PAYMENTS.
The Guarantor consents and agrees:
4
(a) that each Noteholder, and each Person acting for the benefit of
one or more of the Noteholders, shall be under no obligation to marshal
any assets in favor of the Guarantor or against or in payment of any or
all of the Guaranteed Obligations; and
(b) that, to the extent that the Company or the Guarantor makes a
payment or payments to any Noteholder, which payment or payments or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required, for any of the foregoing reasons or
for any other reason, to be repaid or paid over to a custodian, trustee,
receiver, administrative receiver, administrator or any other party or
officer under any bankruptcy law, insolvency, reorganization,
recapitalization or other debtor relief law, other common or civil law, or
equitable cause or judgment, order or decision thereunder, then, to the
extent of such payment or repayment, the obligation or part thereof
intended to be satisfied thereby shall be revived and continued in full
force and effect as if such payment or payments had not been made and the
Guarantor shall be primarily liable for such obligation.
2.6. IMMEDIATE LIABILITY.
The Guarantor agrees that the liability of the Guarantor in respect of
this Guaranty shall be immediate and shall not be contingent upon the exercise
or enforcement by any Noteholder or any other Person of whatever remedies such
Noteholder or other Person may have against the Company, the Guarantor or any
other guarantor or the enforcement of any Lien or realization upon any security
such Noteholder or other Person may at any time possess.
2.7. PRIMARY OBLIGATIONS.
This Guaranty is a primary and original obligation of the Guarantor and is
an absolute, unconditional, continuing and irrevocable guaranty of payment and
performance and shall remain in full force and effect regardless of any action
by any Noteholder specified in Sections 2.3 or 2.8 hereof or any future changes
in conditions, including, without limitation, change of law or any invalidity or
irregularity with respect to the issuance or assumption of any obligations
(including, without limitation, the Notes) of or by the Company, the Guarantor
or any other guarantor, or with respect to the execution and delivery of any
agreement (including, without limitation, the Notes and the Note Purchase
Agreement) of the Company or any other Person.
2.8. NO REDUCTION OR DEFENSE.
The obligations of the Guarantor under this Guaranty, and the rights of
any Noteholder to enforce such obligations by any proceedings, whether by action
at law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise, including, without limitation, claims of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense (other than any defense based upon the irrevocable payment and
performance in full of the obligations of the Company under the Note Purchase
Agreement and the Notes), set-off, counterclaim, recoupment or termination
whatsoever.
Without limiting the generality of the foregoing, no obligations of the
Guarantor shall be discharged or impaired by:
5
(a) any default (including, without limitation, any Default or Event
of Default), failure or delay, willful or otherwise, in the performance of
any obligations by the Guarantor, the Company, any Subsidiary or any of
their respective Affiliates;
(b) any proceeding of, or involving, the Company, the Guarantor or
any other Subsidiary under any bankruptcy law, or any merger,
consolidation, reorganization, dissolution, liquidation, sale of assets or
winding-up or change in corporate constitution or corporate identity or
loss of corporate identity of the Company, the Guarantor any of the other
Subsidiaries or any of their respective Affiliates;
(c) any incapacity or lack of power, authority or legal personality
of, or dissolution or change in the members or status of, the Company or
any other Person;
(d) impossibility or illegality of performance on the part of the
Company under the Notes, the Note Purchase Agreement or any other
instruments or agreements;
(e) the invalidity, irregularity or unenforceability of the Notes,
the Note Purchase Agreement or any other instruments or agreements;
(f) in respect of the Company or any other Person, any change in law
or change of circumstances, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not declared),
terrorist activities, civil commotions, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to obtain materials
or any other causes affecting performance, or any other force majeure,
whether or not beyond the control of the Company or any other Person and
whether or not of the kind hereinbefore specified;
(g) any attachment, claim, demand, charge, Lien, order, process or
any other happening or event or reason, similar or dissimilar to the
foregoing, or any withholding or diminution at the source, by reason of
any taxes, assessments, expenses, indebtedness, obligations or liabilities
of any character, foreseen or unforeseen, and whether or not valid,
incurred by or against any Person, corporation or entity, or any claims,
demands, charges or Liens of any nature, foreseen or unforeseen, incurred
by any Person, or against any sums payable under the Note Purchase
Agreement or the Notes, so that such sums would be rendered inadequate or
would be unavailable to make the payments herein provided; or
(h) any order, judgment, decree, ruling or regulation (whether or
not valid) of any court of any nation or of any political subdivision
thereof or any Governmental Authority, or any other action, happening,
event or reason whatsoever which shall delay, interfere with, hinder or
prevent, or in any way adversely affect, the performance by the Company of
any of its obligations under the Note Purchase Agreement or the Notes.
2.9. NO ELECTION.
6
Each Noteholder shall, individually or collectively, have the right to
seek recourse against each and every Guarantor to the fullest extent provided
for herein for its obligations under this Guaranty. No election to proceed in
one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of such Noteholder's right to proceed in any other
form of action or proceeding or against other parties unless such Noteholder has
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by or on behalf of any
Noteholder against the Company, the Guarantor or any other Person under any
document or instrument evidencing obligations of the Company or such other
Person to or for the benefit of such Noteholder shall serve to diminish the
liability of the Guarantor under this Guaranty except to the extent that such
Noteholder unconditionally shall have realized payment by such action or
proceeding.
2.10. INDIVIDUAL NOTEHOLDER RIGHTS.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder without notice to, or the consent of or any other action by, any
other Noteholder.
2.11. ENFORCEMENT.
Until all amounts which may be or become payable by the Company under or
in connection with the Note Purchase Agreement and the Notes, or by the
Guarantor under or in connection with this Guaranty, have been irrevocably paid
in full, any Noteholder (or any trustee or agent on its behalf) may refrain from
applying or enforcing any security or rights held or received by such Noteholder
(or any trustee or agent on its behalf) in respect of those amounts, or apply
and enforce the same in such manner and order as it sees fit (whether against
those amounts or otherwise) and the Guarantor shall not be entitled to the
benefit of the same.
2.12. OTHER ENFORCEMENT RIGHTS.
Each Noteholder may proceed to protect and enforce this Guaranty by suit
or suits or proceedings in equity, at law or in bankruptcy or insolvency, and
whether for the specific performance of any covenant or agreement contained
herein or in execution or aid of any power herein granted; or for the recovery
of judgment for the obligations hereby guaranteed or for the enforcement of any
other proper, legal or equitable remedy available under applicable law.
2.13. RESTORATION OF RIGHTS AND REMEDIES.
If any Noteholder shall have instituted any proceeding to enforce any
right or remedy against the Guarantor under this Guaranty or otherwise and such
proceeding shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to such Noteholder, then and in every such case
each such Noteholder, the Company and the Guarantor shall, except as may be
limited or affected by any determination in such proceeding, be restored
severally and respectively to its respective former position hereunder, and
thereafter the rights and remedies of such Noteholder shall continue as though
no such proceeding had been instituted.
2.14. SURVIVAL.
7
So long as the Guaranteed Obligations shall not have been fully and
finally performed and indefeasibly paid, the obligations of the Guarantor under
this Guaranty shall survive the transfer and payment of any Note and the payment
in full of all the Notes.
2.15. SUBORDINATION.
The payment of any amounts due with respect to any Indebtedness of the
Company or any other Person obligated in respect of the Guaranteed Obligations
for money borrowed or credit received now or hereafter owed to the Guarantor is
hereby subordinated to the prior payment in full of all of the Guaranteed
Obligations. The Guarantor agrees that, after the occurrence of any default in
the payment or performance of any of the Guaranteed Obligations, no Guarantor
will demand, sue for or otherwise attempt to collect any such Indebtedness of
the Company or any other such Person to the Guarantor until all of the
Guaranteed Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Guarantor shall collect, enforce or receive any amounts
in respect of such Indebtedness while any Guaranteed Obligations are still
outstanding, such amounts shall be collected, enforced and received by the
Guarantor as trustee for the Noteholders and be paid over to the Noteholders on
account of the Guaranteed Obligations without affecting in any manner the
liability of the Guarantor under the other provisions of this Guaranty.
3. REPRESENTATIONS AND WARRANTIES.
The Guarantor hereby represents and warrants to the Noteholders that:
3.1. AFFIRMATION OF REPRESENTATIONS AND WARRANTIES IN NOTE PURCHASE
AGREEMENT.
The Guarantor hereby represents and warrants that each of the
representations and warranties made by the Company as to the Company's
Subsidiaries in the Note Purchase Agreement is true and correct as to the
Guarantor.
3.2. ECONOMIC BENEFIT.
The Guarantor and the Company operate as separate businesses but are
considered a single consolidated business group of companies for purposes of
GAAP and are dependent upon each other for and in connection with their
respective business activities and financial resources. The execution and
delivery by the Noteholders of the Note Purchase Agreement and the maintenance
of certain financial accommodations thereunder constitute an economic benefit to
the Guarantor and the incurrence by the Company of the Indebtedness under the
Note Purchase Agreement and the Notes is in the best interests of the Guarantor.
The board of directors or other management board of the Guarantor has deemed it
advisable and in the best interest of the Guarantor that the transactions
provided for in the Note Purchase Agreement and this Guaranty be consummated.
3.3. INDEPENDENT CREDIT EVALUATION.
The Guarantor has independently, and without reliance on any information
supplied by any one or more of the Noteholders, taken, and will continue to
take, whatever steps the
8
Guarantor deems necessary to evaluate the financial condition and affairs of the
Company, and the Noteholders shall have no duty to advise the Guarantor of
information at any time known to the Noteholders regarding such financial
condition or affairs.
3.4. NO REPRESENTATION BY NOTEHOLDERS.
None of the Noteholders nor any trustee or agent acting on its behalf has
made any representation, warranty or statement to the Guarantor to induce the
Guarantor to execute this Guaranty.
3.5. SURVIVAL.
All representations and warranties made by the Guarantor herein shall
survive the execution hereof and may be relied upon by the Noteholders as being
true and accurate until the Guaranteed Obligations are fully and irrevocably
paid.
4. COVENANTS.
The Guarantor hereby covenants and agrees that, so long as any part of the
Guaranteed Obligations shall remain unpaid, the Guarantor will perform and
observe, and cause each of its Subsidiaries to perform and observe, all of the
terms, covenants and agreements set forth in the Note Purchase Agreement on its
or their part to be performed or observed or that the Company has agreed to
cause the Guarantor or such Subsidiaries to perform or observe.
5. GUARANTOR'S AGREEMANT TO PAY ENFORCEMENT COSTS, ETC.
The Guarantor further agrees, as the primary guarantor and not merely as a
surety, to pay to the Noteholders, on demand, all costs and expenses (including
court costs and reasonable legal expenses) incurred or expended by the
Noteholders in connection with the Guaranteed Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
Section 5 from the time when such amounts become due until payment, whether
before or after judgment, at the rate of interest for overdue principal set
forth in the Note Purchase Agreement, provided that if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
6. SUCCESSORS AND ASSIGNS.
This Guaranty shall bind the successors, assignees, trustees, and
administrators of the Guarantor and shall inure to the benefit of the
Noteholders, and each of their respective successors, transferees, participants
and assignees.
7. AMENDMENTS AND WAIVERS.
No amendment to, waiver of, or departure from full compliance with any
provision of this Guaranty, or consent to any departure by the Guarantor
herefrom, shall be effective against any Noteholder directly affected thereby
unless it is in writing and signed by authorized officers of the Guarantor and
such Noteholder; provided, however, that any such waiver or consent shall
9
be effective only in the specific instance and for the purpose for which given.
No failure by the Noteholders to exercise, and no delay by the Noteholders in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Noteholders of
any right, remedy, power or privilege hereunder preclude any other exercise
thereof, or the exercise of any other right, remedy, power or privilege.
8. RIGHTS CUMULATIVE.
Each of the rights and remedies of the Noteholders under this Guaranty
shall be in addition to all of their other rights and remedies under the Note
Purchase Agreement and applicable law, and nothing in this Guaranty shall be
construed as limiting any such rights or remedies.
9. GOVERNING LAW.
THIS GUARANTY SHALL BE GOVERNED BY, AND 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.
10. WAIVER OF JURY TRIAL.
THE GUARANTOR, AND BY ITS ACCEPTANCE HEREOF, EACH OF THE NOTEHOLDERS,
IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN
ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT
OF THIS GUARANTY, THE NOTE PURCHASE AGREEMENT AND THE NOTES, OR THE VALIDITY,
PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF.
11. FURTHER ASSURANCES.
The Guarantor agrees that it will from time to time, at the request of any
Noteholder, do all such things and execute all such documents as such Noteholder
may consider necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of all Noteholders hereunder. The
Guarantor acknowledges and confirms that the Guarantor itself has established
its own adequate means of obtaining from the Company on a continuing basis all
information desired by the Guarantor concerning the financial condition of the
Company and that the Guarantor will look to the Company and not to the
Noteholders in order for the Guarantor to keep adequately informed of changes in
the Company's financial condition.
12. SEVERABILITY.
Any provision of this Guaranty which is prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition,
10
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
13. SECTION HEADINGS.
Section headings are for convenience only and shall not affect the
interpretation of this Guaranty.
14. LIMITATION OF LIABILITY.
NO NOTEHOLDER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE GUARANTOR
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, (a) ANY LOSS OR DAMAGE
SUSTAINED BY THE GUARANTOR THAT MAY OCCUR AS A RESULT OF, IN CONNECTION WITH, OR
THAT IS IN ANY WAY RELATED TO, ANY ACT OR FAILURE TO ACT REFERRED TO IN SECTION
2.3 OR SECTION 2.4 OR (b) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
SUFFERED BY THE GUARANTOR IN CONNECTION WITH ANY CLAIM RELATED TO THIS GUARANTY.
15. ENTIRE AGREEMENT.
This Guaranty, together with the Note Purchase Agreement and the Notes,
embodies the entire agreement between the Guarantor and the Noteholders relating
to the subject matter hereof and supersedes all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
16. COMMUNICATIONS.
All notices and other communications to the Noteholders or the Guarantor
hereunder shall be in writing, shall be delivered in the manner and with the
effect, as provided by the Note Purchase Agreement, and shall be addressed (a)
to the Guarantor as set forth in Annex A hereto and (b) to the Noteholders as
set forth in the Note Purchase Agreement.
17. DUPLICATE ORIGINALS.
Two or more duplicate counterpart originals hereof may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. Delivery of any executed signature page
to this Guaranty by the Guarantor by facsimile transmission shall be as
effective as delivery of a manually executed copy of this Guaranty by the
Guarantor.
18. COMPROMISES AND ARRANGEMENTS.
Notwithstanding anything contained in the certificate of incorporation or
other charter documents of the Guarantor, the Guarantor acknowledges and agrees
that no Noteholder is waiving any of its rights and remedies under this
Guaranty, including, without limitation, the right to file a bankruptcy petition
or petitions under the United States Bankruptcy Code (11 U.S.C. Section 101 et
seq.) or the right to take advantage of any other bankruptcy or insolvency law
of
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any jurisdiction, and the right to settle its claims in such fashion as it shall
determine, regardless of the settlement or other arrangements that may be made
by any stockholder or other creditor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
MIX ACQUISITION CORPORATION
By: ____________________
Name: Mark R. Belgya
Title: Treasurer
[Signature Page to Guaranty Agreement]
ANNEX A
NOTICE ADDRESS OF GUARANTOR
MIX Acquisition Corporation
Strawberry Lane
Orville, Ohio 44667
Attention: General Counsel
Facsimile: 330-684-3026
Exhibit 4.11-1
EXHIBIT 5.13
FORM OF OFFEREE LETTER
[WILLIAM BLAIR LETTERHEAD]
May 25, 2004
Bingham McCutchen LLP
One State Street
Hartford, CT 06103
The J. M. Smucker Company
Strawberry Lane
Orrville, Ohio 44667
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of May 27, 2004
(the "Note Purchase Agreement"), between The J. M. Smucker Company (the
"Company") and each of the purchasers listed on Schedule A attached thereto (the
"Purchasers"), which provides, among other things, for the issuance and sale by
the Company of its $100,000,000 4.78% Senior Notes due June 1, 2014 (the
"Notes"). The capitalized terms used herein and not defined herein have the
meanings specified in the Note Purchase Agreement.
1. We (who were authorized and employed by the Company in connection with
the offering and sale of the Notes) have not, directory or indirectly, sold or
disposed of, or attempted or offered to sell or dispose of, the Notes or similar
Securities to, or solicited offers to buy any Notes or similar Securities from,
or otherwise approached or negotiated with respect to the Notes or similar
Securities with, any Person that might be considered to be an offeree in
connection with the sale of the Notes or similar Securities, other than seven
(7) institutional investors (four (4) of which are the Purchasers), each of whom
was offered a portion of the Notes at private sale for investment.
2. Immediately prior to making any offer in connection with the Notes to
any of the aforementioned offerees, immediately prior to making any sale of the
Notes to any of the aforementioned offerees, and after making reasonable
inquiry, we had reasonable grounds to believe, and did believe, that each such
offeree had such knowledge and experience in financial and business matters that
it was capable of evaluating the merits and risks of its prospective investment.
3. We have not offered to sell, offered for sale or sold any Notes or
similar Securities by means of any form of general solicitation or general
advertising.
4. During the two-year period ending on the date hereof, we may have,
directory or indirectly, sold or disposed of, or attempted or offered to sell or
dispose of, any debt Securities of the Company other than the Notes.
WILLIAM BLAIR & COMPANY
By: _________________________
Name:
Title:
Exhibit 5.13-1