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Exhibit 4(c)
FIRST AMENDMENT AGREEMENT
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First Amendment Agreement ("Amendment Agreement") made as of the 25th
day of April, 1995, by and among THE J. M. SMUCKER COMPANY ("Borrower"),
SOCIETY NATIONAL BANK, NATIONAL CITY BANK, and THE FIRST NATIONAL BANK OF
CHICAGO (the "Banks") and SOCIETY NATIONAL BANK, as Agent for the Banks
("Agent"):
WHEREAS, Borrower, Agent and Banks are parties to a certain revolving
credit agreement dated as of April 27, 1994, which provides, among other things,
for Syndicated Loans in an aggregate principal amount not to exceed One Hundred
Twenty-Five Million Dollars ($125,000,000) at any one time outstanding, all
upon certain terms and conditions (the "Credit Agreement");
WHEREAS, Borrower, Agent and Banks desire to amend the Credit Agreement
as set forth herein;
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and
Banks agree as follows:
1. The Credit Agreement is hereby amended by deleting the words
"shall mean" in line one of the definition of "Consolidated" in Section 1.01.
2. The Credit Agreement is hereby amended by deleting the definition
"Termination Date" from Section 1.01 and substituting the following in place
thereof:
"'TERMINATION DATE' means April 30, 1998, as such date may be
extended pursuant to Section 2.15 hereof, provided that if such day is
not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business
Day."
3. The Credit Agreement is hereby amended by deleting the words
"generally accepting accounting principles" in Section 1.02, and substituting
in place thereof, the words "generally accepted accounting principles".
4. The Credit Agreement is hereby amended by deleting Section 5.05,
and substituting the following in place thereof:
"SECTION 5.05. ERISA COMPLIANCE. Neither the Borrower nor any
Subsidiary will incur any material accumulated funding deficiency
within the meaning of the ERISA, and the regulations thereunder, or any
material liability to the PBGC, established thereunder in connection
with any Plan. Borrower will furnish to the Banks
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(i) simultaneously with a filing with the PBGC of a notice regarding
any Reportable Event and in any event within thirty (30) days after
Borrower knows or has reason to know that any Reportable Event with
respect to any Plan has occurred, a statement of the treasurer of
Borrower setting forth details as to such Reportable Event and the
action which Borrower or the applicable Subsidiary proposes to take
with respect thereto, together with a copy of the notice of such
Reportable Event given to the PBGC if a copy of such notice is
available to Borrower, (ii) promptly upon requests from the Banks after
the due date (including extensions) for filing with the Internal
Revenue Service, copies of each annual report with respect to each Plan
established or maintained by Borrower and each of its Subsidiaries for
each plan year, including (x) where required by law, a statement of
assets and liabilities of such Plan as of the end of such plan year and
statements of changes in fund balance and in financial position, or a
statement of changes in net assets available for plan benefits, for
such plan year, certified by an independent public accountant
satisfactory to the Banks if required by the Internal Revenue Service,
and (y) an actuarial statement of such Plan applicable to such plan
year, certified by an enrolled actuary of recognized standing
acceptable to the Banks, and (iii) promptly after receipt thereof a
copy of any notice of material change Borrower, any Subsidiary or any
member of the Controlled Group may receive from the PBGC or the
Internal Revenue Service with respect to any Plan administered by
Borrower; provided, that this latter clause shall not apply to notices
of general application promulgated by the PBGC or the Internal Revenue
Service. Borrower will promptly notify the Banks of any taxes assessed,
proposed to be assessed or which Borrower has reason to believe may be
assessed against Borrower or any Subsidiary by the Internal Revenue
Service with respect to any Plan. As used in this subsection
"material" means the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) of Borrower's
Consolidated Tangible Net Worth; and "notices of general application"
means notices that apply generally and not specifically to this Credit
Agreement."
5 . Borrower hereby represents and warrants to Banks that (a)
Borrower has the legal power and authority to execute and deliver this
Amendment Agreement; (b) the officials executing this Amendment Agreement have
been duly authorized to execute and deliver the same and bind Borrower with
respect to the provisions hereof; (c) the execution and delivery hereof by
Borrower and the performance and observance by Borrower of the provisions
hereof do not violate or conflict with the organizational agreements of
Borrower or any law applicable to Borrower or result in a breach of any
provision of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against Borrower; and (d) this Amendment
Agreement constitutes a valid and binding obligation of Borrower in every
respect, enforceable in accordance with its terms.
6. No Event of Default exists under the Credit Agreement, nor will
any occur immediately after the execution and delivery of this Amendment
Agreement by the performance or observance of any provision hereof.
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7. Each reference to the Credit Agreement that is made in the Credit
Agreement or any other writing shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby.
8. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio.
THE J.M. SMUCKER COMPANY SOCIETY NATIONAL BANK, individually
and as Agent
By: /s/ R.K. Smucker By: /s/ Lawrence A. Mack
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Title: President Title: Vice President
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NANONAL CITY BANK THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Stanley J. Gregorin By: /s/ Marguerite Canestraro
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Title: Vice-President Title: Authorized Agent
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