SMUCKER J M CO (Form: S-3ASR, Received: 10/13/2011 10:14:12)

As filed with the Securities and Exchange Commission on October 13, 2011

Registration No.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

The J. M. Smucker Company

(Exact Name of Registrant as Specified in Its Charter)


Ohio		34-0538550
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

One Strawberry Lane

Orrville, Ohio 44667-0280

Tel.: (330) 682-3000

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

Jeannette L. Knudsen

Vice President, General Counsel and Corporate Secretary

One Strawberry Lane

Orrville, Ohio 44667-0280

(330) 682-3000

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

Copies To:

John J. Jenkins

Kristofer K. Spreen

Calfee, Halter & Griswold LLP

1400 KeyBank Center

800 Superior Avenue

Cleveland, Ohio 44114-2688

(216) 622-8200

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. ¨

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):


Large accelerated filer	x	Accelerated filer	¨
Non-accelerated filer	¨ (Do not check if a smaller reporting company)	Smaller reporting company	¨

CALCULATION OF REGISTRATION FEE



Title of Each Class of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Unit (1)	Proposed Maximum Aggregate Offering Price (1)	Amount of Registration Fee (1)
The J. M. Smucker Company:
Debt Securities
Common Shares, without par value
Serial Preferred Shares, without par value
Warrants
Units (2)
Certain subsidiaries of The J. M. Smucker Company identified on the following page:
Guarantees of Debt Securities (3)

(1)	An indeterminate amount of securities to be offered at indeterminate prices is being registered pursuant to this registration statement. The Registrant is deferring payment of the registration fee pursuant to Rule 456(b) and is omitting this information in reliance on Rule 456(b) and Rule 457(r).

(2)	Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.

(3)

No separate consideration will be received for the guarantees of the debt securities being registered. In accordance with Rule 457(n) under the Securities Act of 1933, as amended, no registration fee is payable with respect to the guarantees. See the following page for a table of guarantor registrants.

TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS


Exact name of guarantor as specified in its charter*	State or other jurisdiction of formation	Primary Standard Industrial Code Number		I.R.S. employer identification number
J.M. Smucker LLC	Ohio		2033		03-0434070
The Folgers Coffee Company	Delaware		2090		26-1708101

*	Both subsidiary registrants have the following mailing address:

c/o The J. M. Smucker Company

One Strawberry Lane

Orrville, Ohio 44667-0280

(330) 682-3000

PROSPECTUS

LOGO

THE J. M. SMUCKER COMPANY

Debt Securities

Common Shares

Serial Preferred Shares

Warrants

Units

J.M. SMUCKER LLC

THE FOLGERS COFFEE COMPANY

Guarantees of Debt Securities

We may offer and sell from time to time, in one or more offerings, debt securities, common shares, serial preferred shares and warrants, as well as units that include any of these securities. We may also offer common shares or serial preferred shares upon conversion of debt securities, common shares upon conversion of serial preferred shares, or common shares, preferred shares or debt securities upon the exercise of warrants.

This prospectus also relates to guarantees of debt securities by the subsidiaries identified in this prospectus.

We will provide the specific terms of the securities to be offered in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also supplement, update or amend the information contained in this prospectus. You should read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference, carefully before you invest. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement describing the method and terms of the offering of those securities.

Our common shares are listed on the New York Stock Exchange under the symbol “SJM.” We have not yet determined whether any of the other securities that may be offered by this prospectus will be listed on any exchange, inter-dealer quotation system or over-the-counter market. If we decide to seek the listing of any such securities upon issuance, the prospectus supplement relating to those securities will disclose the exchange, quotation system or market on which the securities will be listed.

Investing in our securities involves risk. See “ Risk Factors ” on page 5 of this prospectus.

We may offer and sell these securities to or through one or more underwriters, dealers or agents, or directly to investors, on a continuous or delayed basis.

The applicable prospectus supplement will provide the names of any underwriters, dealers or agents, the specific terms of the plan of distribution, any over-allotment option and any applicable underwriting discounts and commissions.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The date of this prospectus is October 13, 2011.

TABLE OF CONTENTS


	Page

About This Prospectus		1
Where You Can Find More Information		2
Forward-Looking Statements		3
The Company		5
The Guarantors		5
Risk Factors		5
Use of Proceeds		6
Ratio of Earnings to Fixed Charges		6
Description of Capital Stock		7
Description of Debt Securities and Guarantees		16
Description of Warrants		25
Description of Units		27
Legal Ownership of Securities		28
Plan of Distribution		31
Legal Matters		32
Experts		32

References in this prospectus to the “Company,” “we,” “us” and “our” are to The J. M. Smucker Company and its consolidated subsidiaries unless otherwise specified or the context requires otherwise. References in the prospectus to the “guarantors” or “subsidiary guarantors” are to J.M. Smucker LLC and The Folgers Coffee Company unless otherwise specified or the context requires otherwise.

ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration procedure. Under this shelf procedure, we and/or our selling security holders, as applicable, may sell the securities described in this prospectus.

The securities described above may be offered and sold in combination and in one or more offerings. Each time we offer and sell securities under the registration statement of which this prospectus is a part, we will file with the SEC a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement and any related free writing prospectus that we may authorize may also add, update, or change information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference as described under the heading “Where You Can Find More Information,” in their entirety. They contain information that you should consider when making your investment decision.

This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement .

We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.

The information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of that document, and any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.

This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”

The registration statement that contains this prospectus contains additional information about our company and the securities offered under this prospectus. That registration statement can be read at the SEC website or at the SEC reference room mentioned under the heading “Where You Can Find More Information.”

WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission (“SEC”). Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.

The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than any portion of such documents that by statute, designation in such documents or otherwise are deemed to be furnished, rather than filed, under the applicable SEC rules or are not required to be incorporated herein by reference. We incorporate by reference the following information or documents that we have filed with the SEC:

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our Annual Report on Form 10-K for the fiscal year ended April 30, 2011;

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our Quarterly Report on Form 10-Q for the quarter ended July 31, 2011;

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our Current Reports on Form 8-K filed on August 2, 2011, August 19, 2011, August 22, 2011 and October 13, 2011;

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the description of our common shares contained in our Registration Statement on Form 8-A filed with the SEC on May 23, 2002, and all amendments and reports filed for the purpose of updating that description; and

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the description of our rights to purchase preferred shares contained in our Registration Statement on Form 8-A filed with the SEC on May 21, 2009.

The information relating to us contained in this prospectus and any accompanying prospectus supplement should be read together with the information in the documents incorporated by reference.

You may request a copy of these filings, at no cost, by writing or telephoning us at our principal executive offices at the following address:

The J. M. Smucker Company

Attention: Corporate Secretary

One Strawberry Lane

Orrville, Ohio 44667 (330) 682-3000

FORWARD-LOOKING STATEMENTS

Certain statements contained in this prospectus constitute forward-looking statements within the meaning of federal securities laws. The forward-looking statements may include statements concerning our current expectations, estimates, assumptions, and beliefs concerning future events, conditions, plans, and strategies that are not historical fact. Any statement that is not historical in nature is a forward-looking statement and may be identified by the use of words and phrases such as “expects,” “anticipates,” “believes,” “will,” “plans,” and similar phrases.

Federal securities laws provide a safe harbor for forward-looking statements to encourage companies to provide prospective information. We are providing this cautionary statement in connection with the safe harbor provisions. Readers are cautioned not to place undue reliance on any forward-looking statements as such statements are by nature subject to risks, uncertainties, and other factors, many of which are outside of our control and could cause actual results to differ materially from such statements and from our historical results and experience. These risks and uncertainties include, but are not limited to, those set forth under the caption “Risk Factors” in this prospectus and in our periodic reports under the Exchange Act, as amended, filed with the SEC, as well as the following:

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volatility of commodity markets from which raw materials, particularly green coffee beans, wheat, soybean oil, milk, peanuts and sugar, are procured and the related impact on costs;

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risks associated with derivative and purchasing strategies we employ to manage commodity pricing risks, including the risk that such strategies could result in significant losses and adversely impact our liquidity;

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crude oil price trends and their impact on transportation, energy, and packaging costs;

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our ability to successfully implement and realize the full benefit of price changes and the competitive response;

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the success and cost of introducing new products and the competitive response;

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the success and cost of marketing and sales programs and strategies intended to promote growth in our businesses;

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general competitive activity in the market, including competitors’ pricing practices and promotional spending levels;

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our ability to successfully integrate acquired and merged businesses in a timely and cost effective manner;

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the successful completion of our restructuring programs and our ability to realize anticipated savings and other potential benefits within the time frames currently contemplated;

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the impact of food safety concerns involving our products or those of our competitors;

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the impact of accidents and natural disasters, including crop failures and storm damage;

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the concentration of certain of our businesses with key customers and suppliers and our ability to manage and maintain key relationships;

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the loss of significant customers, a substantial reduction in orders from such customers, or the bankruptcy of any such customer;

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changes in consumer coffee preferences and other factors affecting the coffee business, which represents a substantial portion of our business;

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our ability to obtain any required financing;

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the timing and amount of our capital expenditures, share repurchases, and restructuring costs;

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impairments in the carrying value of goodwill, other intangible assets, or other long-lived assets or changes in useful lives of other intangible assets;

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the impact of new or changes to existing governmental laws and regulations or their application;

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the impact of future legal, regulatory, or market measures regarding climate change;

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the outcome of current and future tax examinations, changes in tax laws, and other tax matters, and their related impact on our tax positions;

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foreign currency and interest rate fluctuations;

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political or economic disruption; and

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risks related to other factors discussed under “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended April 30, 2011.

Readers are cautioned not to unduly rely on such forward-looking statements, which speak only as of the date made, when evaluating the information contained in this prospectus. There may be other factors that may cause our actual results to differ materially from the forward-looking statements. We do not undertake any obligation to update or revise these forward-looking statements to reflect new events or circumstances.

You should read this prospectus, any accompanying prospectus supplement and the documents that are referenced and which have been incorporated by reference herein and therein, completely and with the understanding that our actual future results may be materially different from what we expect. All forward-looking statements are qualified by these cautionary statements.

THE COMPANY

The J. M. Smucker Company was established in 1897 and was incorporated in Ohio in 1921. We operate principally in one industry, the manufacturing and marketing of branded food products on a worldwide basis, although the majority of our sales are in the United States. Our operations outside the United States are principally in Canada although products are exported to other countries as well. Sales outside the United States represented approximately ten percent of our consolidated sales for fiscal 2011. Our branded food products include a strong portfolio of trusted, iconic, market-leading brands that are sold to consumers through retail outlets in North America.

Our principal executive offices are located at One Strawberry Lane, Orrville, Ohio 44667 and our telephone number is (330) 682-3000.

THE GUARANTORS

Any of the debt securities we issue may include guarantees by J.M. Smucker LLC and/or The Folgers Coffee Company. If so provided in a prospectus supplement, each of the guarantors named therein will fully and unconditionally guarantee on a joint and several basis our obligations under the debt securities, subject to certain limitations described in such prospectus supplement.

RISK FACTORS

Investing in our securities may involve risks. You should carefully consider the specific factors discussed under the caption “Risk Factors” in the applicable prospectus supplement, together with all the other information contained in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under “Item 1A. Risk Factors” beginning on page 6 of our Annual Report on Form 10-K for the year ended April 30, 2011, which is incorporated by reference in this prospectus, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future.

USE OF PROCEEDS

Unless otherwise indicated in the applicable prospectus supplement relating to a specific issuance of securities or in any free writing prospectuses we have authorized for use in connection with a specific offering, we intend to use the net proceeds from the sale of the securities for general corporate purposes, which could include, but are not limited to, repayments of outstanding debt, capital expenditures or working capital or for the funding of possible acquisitions.

RATIO OF EARNINGS TO FIXED CHARGES

The following table sets forth the ratio of our earnings to our fixed charges for the periods indicated. The ratio has been computed by dividing earnings by fixed charges. For purposes of computing the ratio, “Earnings” is income before income taxes plus fixed charges, less capitalized interest. “Fixed Charges” is interest expense plus capitalized interest and the portion of rental expense which is representative of interest expense. For purposes of this calculation, management estimates approximately one-third of rent expense is representative of interest expense.


Three Months Ended	Fiscal Year Ended April 30,
July 31, 2011	2011	2010	2009	2008	2007
8.8	8.9	9.7	6.2	6.0	8.9

DESCRIPTION OF CAPITAL STOCK

This section summarizes the terms of our capital stock. The following description of our capital stock is only a summary and does not purport to be complete and is qualified in its entirety by reference to our amended articles of incorporation, which we refer to as our articles of incorporation, our amended regulations, which we refer to as our regulations, and the rights agreement with Computershare Trust Company, N.A. relating to our shareholder rights plan, each of which has been publicly filed with the SEC and is incorporated by reference. See “Where You Can Find More Information.”

Authorized Capital Stock

Our authorized capital stock consists of 156,000,000 shares, including:

•

150,000,000 common shares, without par value; and

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6,000,000 serial preferred shares, without par value.

Common Shares

Our articles of incorporation permit the issuance of up to 150,000,000 common shares. This amount can be amended by our board of directors without shareholder approval, to the extent permitted by Chapter 1701 of the Ohio Revised Code.

Voting Rights

Our articles of incorporation provide that, except as set forth below, each outstanding common share entitles the holder to one vote on each matter properly submitted to the shareholders for their approval, including any vote or consent for the election or removal of our directors.

Notwithstanding the foregoing, holders of our outstanding common shares who have held their common shares for at least four years without a change in beneficial ownership are entitled to ten votes on each of the following matters properly submitted to the shareholders, to the extent those matters are required to be submitted to the shareholders under Ohio law, our articles of incorporation or our regulations, stock exchange rules, or are otherwise submitted or presented to our shareholders for their vote, consent, waiver or other action:

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any matter that relates to or would result in our dissolution or liquidation, whether voluntary or involuntary, and whether pursuant to Section 1701.86 or 1701.91 of the Ohio Revised Code or otherwise;

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the adoption of any amendment to our articles of incorporation or our regulations or the adoption of amended articles of incorporation, other than the adoption of any amendment or amended articles of incorporation that increases the number of votes to which holders of our common shares are entitled or expands the matters to which the time-phase voting provisions of our articles of incorporation apply;

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any proposal or other action to be taken by our shareholders, whether or not proposed by our shareholders, and whether proposed by authority of our board of directors or otherwise, relating to our rights plan or any successor plan;

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any matter relating to any stock option plan, stock purchase plan, executive compensation plan, executive benefit plan, or other similar plan, arrangement, or agreement;

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adoption of any agreement or plan of or for the merger, consolidation or majority share acquisition of us or any of our subsidiaries with or into any other person, whether domestic or foreign, corporate or noncorporate or the authorization of the lease, sale, exchange, transfer or other disposition of all, or substantially all, of our assets;

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any matter submitted to our shareholders pursuant to Article Fifth (interested shareholder provision) or Article Seventh (control share provision) of our articles of incorporation, as they may be further amended, or any issuance of our common shares for which shareholder approval is required by applicable stock exchange rules; and

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any matter relating to the issuance of our common shares or the repurchase of our common shares that our board of directors determines is required or appropriate to be submitted to our shareholders under Ohio law or applicable stock exchange rules.

Upon any change of beneficial ownership of our common shares, the new holder will be entitled to only one vote on the matters listed above until that holder has held the shares for four years without a further change in beneficial ownership. Furthermore, no holder of our common shares will be entitled to exercise more than one vote on any matter listed above if the aggregate voting power that holder otherwise would be entitled to exercise (disregarding the voting power of any holder on August 20, 1985 or acquired by the holder in a transaction not involving a change in beneficial ownership as determined pursuant to our articles of incorporation) would constitute one-fifth or more of our voting power and our common shareholders have not authorized the ownership of common shares by that holder as and to the extent contemplated by Article Seventh (control share provision) of our articles of incorporation.

Dividend Rights

Subject to the rights of holders of serial preferred shares, if any, holders of our common shares are entitled to receive dividends as, when and if dividends are declared by our board of directors out of assets legally available for the payment of dividends.

Liquidation Rights

In the event of a liquidation, dissolution or winding up of us, whether voluntary or involuntary, after payment of liabilities and obligations to creditors and holders of serial preferred shares, if any, our remaining assets are to be distributed ratably among the holders of common shares.

Preemptive Rights

Our shareholders will not have any preemptive rights to purchase or subscribe for shares of any class or any other security of ours.

Redemption Rights

Our common shares are not subject to redemption by us or by the holder of the common shares.

Conversion Rights

Our common shares are not convertible into shares of any other class or any other security of ours.

Repurchase

Under our articles of incorporation, we, by action of our board of directors and without action by our shareholders, may purchase our common shares in accordance with Ohio law. The board of directors may authorize such purchases to be made in the open market or through a private or public sale and at such price as our board of directors determines.

Liability to Further Calls or Assessments

Our outstanding common shares are, and any common shares issued will be, duly authorized, validly issued, fully paid and nonassessable.

Sinking Fund Provisions

Our common shares have no sinking fund provisions.

Serial Preferred Shares

Our articles of incorporation authorize 6,000,000 serial preferred shares. No serial preferred shares are currently issued and outstanding. Our board of directors has, however, established a series designated as Series A Junior Participating Preferred Shares and authorized 1,500,000 of such shares.

Our board of directors may establish and issue one or more series of serial preferred shares from time to time with such powers, preferences, rights, qualifications, limitations and restrictions that are permitted by our articles of incorporation, and as the board fixes by resolution, including:

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dividend rights;

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redemption rights and price;

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sinking fund requirements;

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voting rights;

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conversion rights;

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liquidation rights, preferences and price; and

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restrictions on the issuance of shares of any class or series.

The rights of holders of our serial preferred shares will be subordinate to the rights of our general creditors. Serial preferred shares that we issue will be duly authorized and validly issued, fully paid and nonassessable. Holders of our serial preferred shares will not be entitled to preemptive rights unless specified in the applicable prospectus supplement. Holders of our common shares will not have preemptive rights to participate in any issuance of serial preferred shares.

Our board of directors believes that the serial preferred shares will provide flexibility for future financings and acquisitions by us. Although there currently are no plans to issue serial preferred shares, it is contemplated that from time to time we may consider transactions involving the issuance of serial preferred shares. Because our articles of incorporation give our board of directors flexibility in determining the terms of the serial preferred shares, our board of directors is able to issue serial preferred shares with terms suitable to existing market conditions at the time of issuance or to meet the needs of a particular transaction.

The ability of our board of directors to issue serial preferred shares could enable it to render more difficult or discourage an attempt by another person or entity to obtain control of us. The serial preferred shares could be issued by our board of directors in a public or private sale, merger or similar transaction, increasing the number of outstanding shares and thereby diluting the equity interest and voting power, if the serial preferred shares were convertible into our common shares, of a party attempting to obtain control of us.

Anti-Takeover Matters

Certain provisions of our articles of incorporation, our regulations, Ohio law and our shareholder rights plan, which are summarized in the following paragraphs, may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that a shareholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by shareholders.

Certain Provisions of Our Articles of Incorporation and Regulations

Notice of Shareholder Proposals. Our regulations provide that only business properly brought before annual or special meetings will be considered at the meeting. For annual meetings, the shareholder must have been a shareholder of record at the time notice was given for the annual meeting, been entitled to vote at the annual meeting and have given timely notice in writing to our corporate secretary of the business or nominations for election of directors to be considered at the meeting. Our regulations require that notice of nominations of persons for election to our board of directors or other business be provided no earlier than 120 days, nor later than 90 days, prior to the anniversary date of the prior year’s annual meeting (unless the annual meeting date is more than 30 days before or 60 days after the prior year’s annual meeting date, in which case our regulations provide for alternative notice deadlines). The shareholder’s notice must set forth certain information about the shareholder and include information concerning the business to be brought before the meeting, as specified in our regulations. Our regulations also extend similar notice requirements to proposals made in connection with special meetings of shareholders. Only matters specified in the notice for special meetings or otherwise brought before special meetings by the presiding officer or at the direction of the majority of our board of directors will be considered at special meetings.

No Cumulative Voting . Holders of our common shares do not have cumulative voting rights.

Classified Board of Directors . Under our regulations, our board of directors is divided into three classes, with not fewer than three directors in each class. Our articles of incorporation provide that in an uncontested election of directors, a candidate will be elected as a director only if the votes cast for the candidate exceed the votes cast against the candidate. Abstentions will not be counted as votes cast for or against a candidate. If, however, our board of directors determines that the number of candidates in any one year exceeds the number of directors to be elected in that year, a plurality voting standard will apply and the candidates receiving the greatest number of votes will be elected.

Removal of Directors . Our directors may be removed, only for cause, by the affirmative vote of the holders of a majority of our voting power with respect to the election of directors.

Control Share Acquisitions

Our articles of incorporation provide for the opting out of Ohio’s control share acquisition law. We have, however, adopted similar provisions in our articles of incorporation requiring that notice and informational filings and special shareholder meetings and voting procedures must be followed prior to consummation of a proposed “control share acquisition.” In general a control share acquisition is the acquisition, directly or indirectly, by any person of our shares that when added to all other shares of us in respect of which that person, directly or indirectly, may exercise or direct the exercise of voting power as provided in our articles of incorporation, would entitle the person, immediately after the acquisition, directly or indirectly, to exercise or direct the exercise of the voting power in the election of directors of a number of our outstanding shares (as distinguished from the number of votes to which the holder of the shares is entitled) within any of the following ranges:

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one-fifth or more but less than one-third of outstanding shares;

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one-third or more but less than a majority of outstanding shares; and

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a majority or more of outstanding shares.

Assuming compliance with the notice and information filings, the proposed control share acquisition may be made only if both of the following occur:

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shareholders who hold shares entitling them to vote in the election of directors authorize the acquisition at a special meeting held for that purpose at which a quorum is present by an affirmative vote of a majority of our voting power in the election of directors represented at the meeting in person or by proxy and a majority of the portion of the voting power excluding the voting power of interested shares represented at the meeting in person or by proxy; and

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the acquisition is consummated, in accordance with the terms authorized, not later than 360 days following shareholder authorization of the control share acquisition.

In general, “interested shares” means shares of which any of the following persons may exercise or direct the exercise of our voting power in the election of directors:

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the acquiring person;

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any officer elected by the board of directors, except shares beneficially owned by such officer for four years or more;

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any employee who is also a director, except shares beneficially owned by such employee for four years or more;

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any person that acquires shares during the period beginning with the first public disclosure of the proposed control share acquisition and ending with the record date established for the special meeting, if either of the following applies:

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the aggregate consideration paid by such person, and any persons acting in concert therewith, exceeds $250,000; or

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the number of shares acquired by such person, and any persons acting in concert therewith, exceeds one-half of one percent (1/2%) of our outstanding shares entitled to vote on the election of directors; and

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any person who transfers shares after the record date for the special meeting, if accompanied by voting power in the form of a blank proxy, an agreement to vote as instructed by the transferee or otherwise.

Transactions with Interested Shareholders

We are subject to Chapter 1704 of the Ohio Revised Code, which generally prohibits certain business combinations and transactions with “interested shareholders” for a period of three years after the interested shareholder acquired ten percent or more of the voting power of the corporation in the election of directors, unless prior to the interested shareholder’s acquisition of ten percent or more of the corporation’s shares, the directors of the corporation approved the business combination or other transaction or the purchase of shares by the interested shareholder on the date the shareholder acquired ten percent or more of the corporation’s shares.

In general, subsequent to the three-year period, a transaction subject to Chapter 1704 may take place provided that at least one of the following is satisfied:

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prior to the date the interested shareholder acquired ten percent or more of the corporation’s shares, the board of directors approved the purchase of shares by the interested shareholder;

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the transaction is approved, at a meeting held for that purpose, by the affirmative vote of the holders of shares of the corporation entitling them to exercise at least two-thirds of the voting power of the corporation in the election of directors, or of such different proportion as the articles of incorporation may provide, provided that the transaction is also approved by the affirmative vote of the holders of at least a majority of the disinterested shares; or

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the transaction results in shareholders, other than the interested shareholder, receiving a fair price (as described in Chapter 1704) plus interest for their shares.

In addition, our articles of incorporation provide that any business combination between us and any person that beneficially owns more than 30% of our shares entitled to vote in the election of directors (or at any time owned more than 30% of our shares entitled to vote in the election of directors) must be approved by the affirmative vote of 85% of all shares entitled to vote in the election of directors. The 85% voting requirement is not applicable if:

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the cash, or fair market value of other consideration, to be received per share by our common shareholders in the business combination is at least an amount equal to the highest per share price paid

by the other entity in acquiring any of its holdings of our common shares plus the aggregate amount, if any, by which 5% per annum of the per share price exceeds the aggregate amount of all dividends paid in cash, in each case since the date on which the other entity acquired the 30% interest;

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after the other entity has acquired a 30% interest and prior to the consummation of the business combination, (1) the other entity has taken steps to ensure that our board of directors included at all times representation by continuing directors proportionate to the shareholdings of the public holders of our common shares not affiliated with the other entity (with a continuing director to occupy any resulting fractional board position), (2) the other entity has not acquired any newly issued shares, directly or indirectly, from us (except upon conversion of convertible securities acquired by it prior to obtaining a 30% interest or as a result of a pro rata share dividend or share split) and (3) the other entity has not acquired any additional outstanding common shares or securities convertible into our common shares except as part of the transaction that resulted in the other entity’s acquiring its 30% interest;

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the other entity has not (1) received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or tax credits provided by us or (2) made any major change in our business or equity capital structure without in either case the approval of at least a majority of all the directors and at least two-thirds of the continuing directors, in either case prior to the consummation of the business combination; and

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a proxy statement responsive to the requirements of the Exchange Act has been mailed to our public shareholders for the purpose of soliciting shareholder approval of the business combination and contained at the front, in a prominent place, any recommendations as to the advisability (or inadvisability) of the business combination that the continuing directors, or any of them, may choose to state and, if deemed advisable by a majority of the continuing directors, an opinion of a reputable investment banking firm as to the fairness (or not) of the terms of the business combination, from the point of view of our remaining public shareholders (the investment banking firm to be selected by a majority of the continuing directors and to be paid a reasonable fee for their services by us upon receipt of the opinion).

Continuing directors are directors elected by shareholders prior to the time when such entity acquired more than 5% of the shares entitled to vote in the election of directors, or a person recommended to succeed a continuing director or by a majority of continuing directors.

Rights Plan

Our shareholders are subject to our existing shareholders’ rights plan pursuant to a rights agreement between us and Computershare Trust Company, N.A., as rights agent, dated as of May 20, 2009. A summary of the material provisions of the rights plan is set forth below and is qualified by reference to the complete text of the rights plan, which has been filed with the SEC. The summary does not describe all of the terms of the rights plan. For more information on how to obtain a copy of the rights plan, see “Where You Can Find More Information.”

Our directors adopted the rights plan to protect our shareholders from coercive takeover practices or takeover bids that are inconsistent with their best interests. In general terms, the rights plan imposes a significant penalty upon any person or group that acquires beneficial ownership of 10% or more of our outstanding common shares without the prior approval of our directors. A person or group that acquires beneficial ownership of a percentage of our common shares in excess of that threshold is called an “acquiring person.” Any rights held by an acquiring person are void and may not be exercised. The term “beneficial ownership” is defined in the rights plan and includes, among other things, certain derivative or synthetic arrangements having characteristics of a long position in common shares.

The Rights . Our directors authorized the issuance of one right per each outstanding common share on June 2, 2009. If the rights become exercisable, each right would allow its holder to purchase from us one

one-hundredth of a Series A Junior Participating Preferred Share for a purchase price of $140.00. Each fractional preferred share would give the shareholder approximately the same dividend, voting and liquidation rights as does one of our common shares. Prior to exercise, however, a right does not give its holder any dividend, voting or liquidation rights.

Exercisability . The rights will not be exercisable until the earlier of:

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ten days after a public announcement by us that a person or group has become an acquiring person; and

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ten business days (or a later date determined by our directors) after a person or group begins a tender or exchange offer that, if completed, would result in that person or group becoming an acquiring person.

We refer to the date that the rights become exercisable as the “distribution date.” Until the distribution date, our common share certificates will also evidence the rights and will contain a notation to that effect. Any transfer of common shares prior to the distribution date will constitute a transfer of the associated rights. After the distribution date, the rights will separate from the common shares and be evidenced by right certificates, which we will mail to all holders of rights that have not become void.

Flip-In Event . After the distribution date, if a person or group already is or becomes an acquiring person, all holders of rights, except the acquiring person, may exercise their rights upon payment of the purchase price to purchase our common shares (or other securities or assets as determined by our directors) with a market value of two times the purchase price.

Flip-Over Event . After the distribution date, if a flip-in event has already occurred and we are acquired in a merger or similar transaction, all holders of rights except the acquiring person may exercise their rights upon payment of the purchase price to purchase shares of the acquiring corporation with a market value of two times the purchase price of the rights.

Rights may be exercised to purchase our preferred shares only after the distribution date occurs and prior to the occurrence of a flip-in event as described above. A distribution date resulting from the commencement of a tender offer or exchange offer described in the second bullet point above could precede the occurrence of a flip-in event, in which case the rights could be exercised to purchase our preferred shares. A distribution date resulting from any occurrence described in the first bullet point above would necessarily follow the occurrence of a flip-in event, in which case the rights could be exercised to purchase common shares or other securities as described above.

Expiration . The rights will expire on the tenth anniversary of their distribution unless earlier redeemed or exchanged.

Redemption . Our board of directors may redeem all (but not less than all) of the rights for a redemption price of $0.001 per right (subject to adjustment) at any time before the later of the distribution date and the date of the first public announcement by us that a person or group has become an acquiring person. Once the rights are redeemed, the right to exercise rights will terminate, and the only right of the holders of rights will be to receive the redemption price.

Exchange . After the later of the distribution date and the date of the first public announcement by us that a person or group has become an acquiring person, but before an acquiring person owns 50% or more of our outstanding common shares, our board of directors may exchange each right (other than rights that have become void) for one common share or an equivalent security.

Anti-Dilution Provisions . Our board of directors may adjust the purchase price of the preferred shares, the number of preferred shares issuable and the number of outstanding rights to prevent dilution that may occur as a result of certain events, including, among others, a stock dividend, a stock split or a reclassification of the preferred shares or our common shares. No adjustments to the purchase price of less than 1% will be made.

Amendments . Before the time rights cease to be redeemable, our board of directors may amend or supplement the rights plan without the consent of the holders of the rights, except that no amendment may decrease the redemption price below $0.001 per right. At any time thereafter, our board of directors may amend or supplement the rights plan only to cure an ambiguity, to alter time period provisions, to correct inconsistent provisions or to make any additional changes to the rights plan, but only to the extent that those changes do not impair or adversely affect any rights holder and do not result in the rights again becoming redeemable. The limitations on our board of directors’ ability to amend the rights plan does not affect our board of directors’ power or ability to take any other action that is consistent with its fiduciary duties, including without limitation accelerating or extending the expiration date of the rights, making any amendment to the rights plan that is permitted by the rights plan or adopting a new rights plan with such terms as our directors determine in their sole discretion to be appropriate.

Mergers, Acquisitions, Share Purchases and Certain Other Transactions

The Ohio Revised Code requires approval of mergers, dissolutions, dispositions of all or substantially all of a corporation’s assets and majority share acquisitions and combinations involving issuance of shares representing one-sixth or more of the voting power of the corporation immediately after the consummation of the transaction (other than so-called “parent-subsidiary” mergers), by two-thirds of the voting power of a corporation, unless the articles of incorporation specify a different proportion (but not less than a majority). Our articles of incorporation do not specify a voting power proportion different than that specified by Ohio law in connection with the approval of these transactions.

Amendments to Constituent Documents

Ohio law permits the adoption of amendments to articles of incorporation if those amendments are approved at a meeting held for that purpose by the holders of shares entitling them to exercise two-thirds of the voting power of the corporation, or a lesser, but not less than a majority, or greater vote as specified in the articles of incorporation. Our articles of incorporation specify that amendments relating to transactions with interested persons require the affirmative vote of the holders of 85% of the common shares entitled to vote in the election of directors, except that the 85% vote will not be required for any amendment to that provision recommended to our shareholders if the recommendation was approved by at least a majority of our directors and at least two-thirds of our continuing directors.

Ohio law permits adoption of amendments to regulations by an affirmative vote of the majority of shares entitled to vote or by written consent from holders of two-thirds of the shares entitled to vote or by written consent or vote of a greater or lesser proportion as provided in the articles of incorporation or regulations but not less than the majority of voting power. Our regulations may be amended by (1) our board of directors to the extent permitted by Ohio law or (2) our shareholders by the affirmative vote of a majority of our voting power at a meeting held for that purpose, or without a meeting by the affirmative written consent of two-thirds of our voting power.

Limitation of Liability of Directors and Officers

Our regulations provide that a director will be liable for monetary damages for any action or omission as a director only if it is proven by clear and convincing evidence that the act or omission was undertaken either with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. This provision, however, does not affect the liability of directors under Section 1701.95 of the Ohio Revised Code, which relates to:

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the payment of dividends or distributions, the making of distributions of assets to shareholders or the purchase or redemption of the corporation’s shares, contrary to the law or our articles;

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the distribution of assets to shareholders during the winding up of our affairs by dissolution or otherwise, if creditors are not adequately provided for; and

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the making of certain loans to officers, directors or shareholders, other than in the usual course of business, without approval by a majority of the disinterested directors of the corporation.

Our regulations provide that a director will not be found to have violated his or her duties to the corporation as a director of the corporation in any action brought against the director unless it is proven by clear and convincing evidence that the director has not acted in good faith, in a manner he or she reasonably believes to be in, or not opposed to, the best interests of the corporation, or with the care that an ordinarily prudent person in a like position would use under similar circumstances. Our regulations specify various matters and constituencies that may be considered by a director in the discharge of his or her duties to the corporation as a director of the corporation.

Our regulations:

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provide that we must indemnify any director or officer to the full extent permitted by Ohio law, as it exists or as it may in the future be amended to provide broader rights to indemnification;

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permit us to indemnify employees or agents of ours to the extent authorized from time to time by our board of directors;

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provide that the indemnification rights conferred in our regulations are contract rights and such rights will continue as to an indemnitee who has ceased to be a director, officer, employee or agent and inure to the benefit of the indemnitee’s heirs, executors and administrators;

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clarify the categories of expenses and liabilities as to which an indemnitee will be entitled to indemnification and provide that, except in the case of proceedings to enforce rights to indemnification, we will indemnify the indemnitee in connection with a proceeding initiated by the indemnitee only if authorized by our board of directors;

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provide the indemnitee with a right to bring suit against us if a claim with respect to indemnification has not been paid within a specified period, and provide that if the indemnitee is successful in the lawsuit, the indemnitee will also be entitled to be paid the expense of prosecuting or defending the suit; and

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establish certain procedures and presumptions with respect to the indemnitee’s right to indemnification.

Ohio law provides that a corporation must indemnify a person for expenses reasonably incurred successfully defending (on the merits or otherwise) an action, suit or proceeding (including certain derivative suits) brought against the person as a director, officer, employee or agent of the corporation. Further, a corporation may indemnify such persons for liability in such actions, suits or proceedings if the person acted in good faith in a matter believed to be in, or not opposed to, the best interest of the corporation, and, with respect to a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. Indemnification may be made only if ordered by a court or authorized in a specific case upon the determination that the appropriate standard has been met by the majority of disinterested directors, an independent legal advisor or shareholders.

Transfer Agent and Registrar

Computershare Investor Services, LLC serves as the transfer agent and registrar for our common shares.

Stock Exchange Listing

Our common shares are listed on the New York Stock Exchange under the trading symbol “SJM.”

DESCRIPTION OF DEBT SECURITIES AND GUARANTEES

This prospectus describes certain general terms and provisions of the debt securities and the guarantees. The debt securities will be issued under an indenture between us and U.S. Bank National Association, as trustee. When we offer to sell a particular series of debt securities, we will describe the specific terms for the securities and any related guarantees in a supplement to this prospectus. The prospectus supplement will also indicate if any of the general terms and provisions described in this prospectus do not apply to a particular series of debt securities.

Each prospectus supplement will describe any guarantees of debt securities for the benefit of the series of debt securities to which it relates. If so provided in a prospectus supplement, full and punctual payment, when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and any other payments due on the debt securities will be guaranteed, jointly and severally, fully, unconditionally and irrevocably, by each of the guarantors named in such prospectus supplement on a senior unsecured basis. The obligations of a guarantor under its guarantee will be limited to the extent necessary to prevent the obligations of such guarantor from constituting a fraudulent conveyance or fraudulent transfer under federal or state law.

We have summarized certain terms and provisions of the indenture. The summary is not complete. The indenture has been incorporated by reference as an exhibit to the registration statement for these securities that we have filed with the SEC. You should read the indenture for the provisions which may be important to you. The indenture is subject to and governed by the Trust Indenture Act of 1939, as amended.

The indenture does not limit the amount of debt securities which we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize from time to time. Unless otherwise specified in the applicable prospectus supplement, we may, without the consent of the holders of a series of debt securities, issue additional debt securities of that series having the same terms (except for the price to public, issue date, initial interest payment date, initial interest accrual date and amount of the first interest payment) as such debt securities. Any such additional debt securities, together with the initial debt securities, will constitute a single series of debt securities under the indenture. The prospectus supplement relating to a series of debt securities being offered will describe the terms of such debt securities, including:

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the title of the debt securities;

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ranking of the specific series of debt securities relative to other outstanding indebtedness, including subsidiaries’ debt;

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whether and the extent that debt securities will be guaranteed by the guarantors, the ranking of any such guarantee, the terms of such subordination, if applicable, of any such guarantee and the form of any such guarantee;

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if the debt securities are subordinated, the aggregate amount of outstanding indebtedness, as of a recent date, that is senior to the subordinated securities, and any limitation on the issuance of additional senior indebtedness;

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the designation, aggregate principal amount (and any limits in the aggregate principal amount of debt securities of that series) and authorized denominations;

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the maturity date;

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the interest rate, if any, and the method for calculating the interest rate;

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the interest payment dates and the record dates for the interest payments;

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any mandatory or optional redemption terms or prepayment, conversion, sinking fund or exchangeability or convertibility provisions;

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the place where we will pay principal and interest;

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if other than denominations of $1,000 or multiples of $1,000, the denominations the debt securities will be issued in;

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whether the debt securities will be issued in the form of global securities or certificates;

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the inapplicability of and additional provisions, if any, relating to the defeasance of the debt securities;

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the currency or currencies, if other than the currency of the United States, in which principal and interest will be paid;

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any material U.S. federal income tax consequences;

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the dates on which premium, if any, will be paid;

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our right, if any, to defer payment of interest and the maximum length of this deferral period;

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any listing on a securities exchange;

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the initial public offering price; and

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other specific terms, including any additional events of default or covenants.

The debt securities will be our direct unsecured obligations and will rank equally and pari passu with all of our other unsecured and unsubordinated debt. The debt securities are our unsecured senior debt securities, but our assets include equity in our subsidiaries. As a result, our ability to make payments on the debt securities depends in part on our receipt of dividends, loan payments and other funds from our subsidiaries. Certain of our subsidiaries are guarantors under our senior revolving credit facility and our outstanding senior notes, and such subsidiaries may also guarantee one or more series of debt securities issued under the indenture. In addition, if any of our subsidiaries becomes insolvent, the direct creditors of that subsidiary will have a prior claim on its assets. Our rights and the rights of our creditors, including your rights as an owner of debt securities, will be subject to that prior claim, unless we or you, in the event that your debt securities are guaranteed by such subsidiary, are also a direct creditor of that subsidiary. This subordination of creditors of a parent company to prior claims of creditors of its subsidiaries is commonly referred to as structural subordination. In addition, the debt securities will effectively rank junior in right of payment to any of our secured indebtedness to the extent of the assets securing such indebtedness.

Events of Default

When we use the term “Event of Default” in the indenture with respect to the debt securities of any series, here are some examples of what we mean (unless otherwise specified in the applicable prospectus supplement with respect to such series):

(1) default in paying interest on the debt securities of that series when it becomes due and the default continues for a period of 30 days or more;

(2) default in paying principal, or premium, if any, on the debt securities of that series when due;

(3) default is made in the payment of any sinking or purchase fund or analogous obligation when the same becomes due with respect to the debt securities of that series, and such default continues for a period of 30 days or more;

(4) default in the performance, or breach, of any covenant or warranty of the Company or any guarantor in the indenture applicable to that series (other than defaults specified in clause (1), (2) or (3) above) and the default or breach continues for a period of 90 days or more after we receive written notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the series;

(5) default under any agreement or instrument evidencing, or under which we or any restricted subsidiary has outstanding at the time, any indebtedness for money borrowed by us or a restricted subsidiary, which default or defaults, individually or in the aggregate, have resulted in the acceleration of any portion of such indebtedness having an aggregate principal amount equal to or in excess of $100 million;

(6) any guarantee with respect to the debt securities of such series ceases for any reason to be, or is asserted by us or the guarantor not to be, in full force and effect and enforceable in accordance with its terms except to the extent contemplated by the indenture and any such guarantee;

(7) certain events of bankruptcy, insolvency, reorganization or similar proceedings with respect to the Company have occurred; or

(8) any other Events of Default set forth in the prospectus supplement with respect to the debt securities of such series.

If an Event of Default (other than an Event of Default specified in clause (7) with respect to the Company) under the indenture occurs with respect to the debt securities of any series and is continuing, then the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may by written notice require us to repay immediately the entire principal amount of the outstanding debt securities of that series (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest.

If an Event of Default under the indenture specified in clause (7) with respect to the Company occurs and is continuing, then the entire principal amount of the outstanding debt securities (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest, will automatically become due and payable immediately without any declaration or other act on the part of the trustee or any holder.

After a declaration of acceleration, the holders of a majority in aggregate principal amount of outstanding debt securities of any series may rescind this accelerated payment requirement if all existing Events of Default, except for nonpayment of the principal and interest on the debt securities of that series that has become due solely as a result of the accelerated payment requirement, have been cured or waived, if all sums paid or advanced by the trustee and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel have been paid and if the rescission of acceleration would not conflict with any judgment or decree. The holders of a majority in aggregate principal amount of the outstanding debt securities of any series also have the right to waive past defaults, except a default theretofore not cured in paying principal or interest on any outstanding debt security, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all holders of the debt securities of that series.

Holders of at least 25% in aggregate principal amount of the outstanding debt securities of a series may seek to institute a proceeding only after they have notified the trustee of a continuing Event of Default in writing and made a written request, and offered reasonable indemnity, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it received this notice. In addition, within this 60-day period the trustee must not have received directions inconsistent with this written request by holders of a majority in aggregate principal amount of the outstanding debt securities of that series. These limitations do not apply, however, to a suit instituted by a holder of a debt security for the enforcement of the payment of principal, interest or any premium on or after the due dates for such payment.

During the existence of an Event of Default, the trustee is required to exercise the rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent man would under the circumstances in the conduct of that person’s own affairs. If an Event of Default has occurred and is continuing, the trustee is not under any obligation to exercise any of its rights or powers at the request or direction of any of the holders unless the holders have offered to the trustee reasonable security or indemnity. Subject to certain provisions, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust, or power conferred on the trustee.

The trustee will, within 90 days after receiving notice of the occurrence of any default, give notice of the default to the holders of the debt securities of that series, unless the default was already cured or waived. Unless there is a default in paying principal, interest or any premium when due, the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.

Modification and Waiver

The indenture may be amended or modified without the consent of any holder of debt securities in order to:

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evidence a succession to the trustee;

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cure ambiguities, defects or inconsistencies;

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provide for the assumption of our obligations (or those of any subsidiary guarantor) in the case of a merger or consolidation or transfer of all or substantially all of our assets (or those of a subsidiary guarantor) permitted under the indenture;

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make any change that would provide any additional rights or benefits to the holders of the debt securities of a series;

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evidence the addition of any subsidiary as a guarantor or the release of any guarantor and its obligations;

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secure the debt securities of a series;

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establish the form or forms of debt securities of any series;

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provide for the issuance of any series of debt securities and to set the terms thereof;

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add to the rights of the holders of any series of debt securities;

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add any additional events of default in respect of the debt securities of any or all series;

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maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; or

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make any change that does not adversely affect in any material respect the interests of any holder.

Other amendments and modifications of the indenture or the debt securities issued may be made with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of each series affected by the amendment or modification. However, no modification or amendment may, without the consent of the holder of each outstanding debt security affected:

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reduce the principal amount or any interest or premium payable thereon, or extend the fixed maturity or the stated payment date of any payment of premium or interest, of the debt securities;

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alter or waive the redemption or repayment provisions of the debt securities;

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change the method of computing the amount of principal of any debt security or any interest payable thereon on any date;

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change the place of payment or currency in which principal, any premium or interest is paid;

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reduce the percentage in principal amount outstanding of debt securities of any series which must consent to an amendment, supplement or waiver or consent to take any action;

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impair the right to institute suit for the enforcement of any payment on the debt securities;

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waive a payment default with respect to the debt securities;

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reduce the interest rate or extend the time for payment of interest on the debt securities;

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reduce the requirements contained in the indenture for quorum or voting;

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limit a holder’s right, if any, to repayment of debt securities at the holder’s option;

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modify any of the foregoing requirements contained in the indenture or those related to waivers of default or compliance with covenants contained in the indenture except to increase the percentage required for any such waiver or to provide that other provisions of the indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby;

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except for releases in compliance with the terms of the indenture, amend or modify the terms of any of the guarantee provisions of the indenture in a manner adverse to the holders; or

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release any guarantor from any of its obligations under its guarantee or the indenture, except in compliance with the terms of the indenture.

Under the indenture, the holders of at least a majority of the aggregate principal amount of the outstanding debt securities of all series of debt securities affected by a particular covenant or condition, acting as one class, may, on behalf of all holders of such series of debt securities, waive compliance by us with any covenant or condition contained in the indenture unless we specify that such covenant or condition cannot be so waived at the time we establish the series.

In addition, under the indenture, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series of debt securities may, on behalf of all holders of that series, waive any past default under the indenture, except:

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a default in the payment of the principal of any sinking or purchase fund or any analogous obligation or any premium or interest on any debt securities of that series; or

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a default under any provision of the indenture which itself cannot be modified or amended without the consent of the holders of each outstanding debt security of that series.

Covenants

Limitation of Liens Applicable to Debt Securities

The indenture provides that with respect to debt securities, unless otherwise provided in a particular series of debt securities, we will not, and will not permit any of our restricted subsidiaries to, incur, assume or guarantee any debt secured by a lien on any principal property or on any shares of stock of (or other interests in) any of our restricted subsidiaries unless we or that first-mentioned restricted subsidiary secures or causes such restricted subsidiary to secure the debt securities (and any of its or such restricted subsidiary’s other debt, at its option or such restricted subsidiary’s option, as the case may be, not subordinate to the debt securities), equally and ratably with (or prior to) such secured debt, for as long as such secured debt will be so secured.

These restrictions will not, however, apply to debt secured by:

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liens on property, shares of stock or indebtedness (herein referred to as “property”) of any corporation or other entity existing at the time such corporation or other entity becomes a restricted subsidiary;

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liens on property existing at the time of acquisition of such property by us or a restricted subsidiary or on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with us or a restricted subsidiary, provided that such liens do not attach to or affect property theretofore owned by us or such restricted subsidiary;

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liens to secure the payment of all or any part of the purchase price of the property subject to such liens, or liens consisting of the interests of lessors in property under capital leases of such property;

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liens on property of a restricted subsidiary securing debt owed to us or to another restricted subsidiary;

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liens existing at the date of the indenture;

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liens in favor of the United States, any State, any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction, or in favor of holders of securities issued by any of the foregoing, to secure partial, progress, advance or other payments pursuant to any contract or statute (including specifically liens to secure industrial revenue bonds and similar debt);

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liens on property (and improvements thereto) to secure any debt incurred for the purpose of financing all or part of the purchase price or cost of construction, development or substantial repair, alteration or improvement of such property if such debt is incurred prior to, at the time of or within one year after (or pursuant to a commitment obtained within one year after) the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property;

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liens arising in connection with contracts with or made at the request of U.S. governmental entities;

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mechanics’, materialmens’, carriers, growers’, producers’, farmers’ and similar liens arising in the ordinary course of business (including construction of facilities) in respect of obligations not due or being contested in good faith;

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liens arising from deposits with or the giving of any form of security to any governmental authority required by law or governmental regulation as a condition to the transaction of business or exercise of any privilege, franchise or license;

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liens for taxes, assessment or governmental charges or levies which, if delinquent, are being contested in good faith;

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liens (including judgment liens) arising from legal proceedings;

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liens incurred or deposits made in the ordinary course of business in connection with or to secure the performance of bids, tenders, leases or trade contracts (other than for the payment of debt) or to secure surety, appeal, indemnity, performance or other similar bonds;

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liens of any depositary bank consisting of statutory, common law or contractual rights of setoff or recoupment with respect to any deposit account; or

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any extension, renewal or replacement of these categories of liens, so long as such lien does not extend to any other property and the amount of debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal or replacement).

However, if the total amount of our debt and the debt of our restricted subsidiaries secured by liens that would otherwise be subject to the foregoing restriction and any attributable debt (as defined below and not including any debt permitted to be secured as per above) deemed to be debt subject to the provisions of this paragraph would not exceed 15% of our consolidated net tangible assets (as defined below) this requirement does not apply.

Sale and Leaseback . We will not enter, nor will we permit any restricted subsidiary to enter, into a sale and leaseback transaction of any principal property more than 120 days after our or such restricted subsidiary’s acquisition or completion of construction and commencement of full operation of such principal property (except for temporary leases for a term of not more than three years and except for leases between us and a restricted subsidiary or between restricted subsidiaries) unless:

(a) we or such restricted subsidiary would be entitled to incur, assume or guarantee debt secured by such principal property at least equal in amount to the attributable debt in respect of such transaction without equally and ratably securing the debt securities (provided that such attributable debt will thereupon be deemed to be debt subject to the provisions of the preceding paragraph), or (b) an amount in cash equal to such attributable debt is applied, within 120 days of the effective date of such transaction, to the non-mandatory retirement of our long-term unsubordinated debt or long-term unsubordinated debt of a restricted subsidiary.

Definitions . The following are definitions of some terms used in the above description. We refer you to the indenture for a full description of all of these terms, as well as any other terms used herein for which no definition is provided.

The term “ attributable debt ” means the present value (discounted at the inherent interest rate as determined by us in good faith, compounded semi-annually) of the obligation of a lessee for rental payments during the remaining term of any lease (including any period for which such lease has been extended).

The term “ consolidated net tangible assets ” means the total assets appearing on our latest consolidated balance sheet contained in our most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, filed with the SEC, excluding the sum of (1) all current liabilities and (2) all goodwill, patents, copyrights, trademarks and other like intangibles.

The term “ debt ” means any indebtedness for money borrowed.

The term “ subsidiary ” means any corporation or other entity that is consolidated in our financial statements, any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of that corporation is at the time owned or controlled solely by us or in conjunction with or by one or more subsidiaries, and any other entity of which at least a majority of the voting interest under ordinary circumstances is at the time owned or controlled solely by us or in conjunction with or by one or more subsidiaries.

The term “ restricted subsidiary ” means each guarantor and any other subsidiary:

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substantially all of the property of which is located within the continental United States;

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that owns a principal property; and

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in which our investment exceeds 5% of our consolidated assets as shown on our latest quarterly financial statements.

However, the term “ restricted subsidiary ” does not include any subsidiary which is principally engaged in certain types of leasing and financing activities.

The term “ principal property ” means any manufacturing or processing plant or facility, warehouse, office facility or distribution center that is located within the continental United States. Our board of directors (or any duly authorized committee of our board of directors) by resolution may create an exception by declaring that a plant or facility, together with all other plants and facilities previously so declared, is not of material importance to the total business conducted by us and our restricted subsidiaries as an entirety.

Consolidation, Merger or Sale of Assets

The indenture provides that we or any guarantor may consolidate or merge with or into, or convey or transfer all or substantially all of our properties and assets or the properties and assets of such guarantor, as the case may be, to, any entity (including, without limitation, a limited partnership or a limited liability company); provided that:

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we or such guarantor, as the case may be, will be the surviving corporation or, if not, that the successor will be a corporation that is organized and validly existing under the laws of any state of the United States or the District of Columbia and will expressly assume by a supplemental indenture our or such guarantor’s, as the case may be, obligations under the indenture and the debt securities or guarantees of debt securities, as the case may be;

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immediately after giving effect to such transaction, no event of default, and no default or other event which, after notice or lapse of time, or both, would become an event of default, will have happened and be continuing; and

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we will have delivered to the trustee an opinion of counsel and an officers’ certificate, stating that such consolidation, merger, conveyance or transfer and any assumption complies with the indenture.

In the event of any such consolidation, merger, conveyance, transfer or lease, any such successor or acquiring entity will succeed to and be substituted for us or any guarantor, as the case may be, as obligor on the debt securities or guarantees of debt securities with the same effect as if it had been named in the indenture as obligor. As a result, we or such guarantor, as the case may be, will be released from all liabilities and obligations under the indenture, the debt securities or the guarantees of debt securities.

Unless otherwise provided in a particular series of debt securities, there are no other restrictive covenants contained in the indenture. The indenture does not contain any provision that will restrict us or any guarantor, as the case may be, from entering into one or more additional indentures providing for the issuance of debt securities or warrants, or from incurring, assuming, or becoming liable with respect to any indebtedness or other obligation, whether secured or unsecured, or from paying dividends or making other distributions on our capital stock, or from purchasing or redeeming our capital stock. The indenture does not contain any financial ratios or

specified levels of net worth or liquidity to which we or such guarantor, as the case may be, must adhere. In addition, the indenture does not contain any provision that would require us to repurchase, redeem, or otherwise modify the terms of any of the debt securities upon a change in control or other event involving us that may adversely affect our creditworthiness or the value of the debt securities.

Satisfaction, Discharge and Covenant Defeasance

We may terminate our obligations under the indenture, when:

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either:

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all debt securities of any series issued that have been authenticated and delivered have been delivered to the trustee canceled or for cancellation; or

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all the debt securities of any series issued that have not been delivered to the trustee canceled or for cancellation have become due and payable, will become due and payable within one year, or are to be called for redemption within one year and we have made arrangements satisfactory to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and in each case, we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire indebtedness on the series of debt securities to pay principal, interest and any premium; and

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we have paid or caused to be paid all other sums then due and payable under the indenture; and

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we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with.

We may elect to have our obligations under the indenture discharged with respect to the outstanding debt securities of any series (“legal defeasance”). Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt securities of such series under the indenture, except for:

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the rights of holders of the debt securities to receive principal, interest and any premium when due and any remaining rights to receive mandatory sinking fund payments;

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our obligations with respect to the debt securities concerning issuing temporary debt securities, registration of transfer of debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment for security payments held in trust;

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the rights, powers, trusts, duties and immunities of the trustee; and

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the defeasance provisions of the indenture.

In addition, we may elect to have our obligations released with respect to certain covenants in the indenture (“covenant defeasance”). Any omission to comply with these obligations will not constitute a default or an event of default with respect to the debt securities of any series. In the event covenant defeasance occurs, certain events, not including non-payment, bankruptcy and insolvency events, described under “—Events of Default” above will no longer constitute an event of default for that series. Additionally, with limited exceptions, we would not have to comply with covenants applicable to such debt series (including without limitation those covenants relating to consolidation, merger or sale, limitation on liens, and sale and leaseback transactions).

In order to exercise either legal defeasance or covenant defeasance with respect to outstanding debt securities of any series:

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we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities of a series:

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money in an amount;

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U.S. government obligations (or equivalent government obligations in the case of debt securities denominated in other than U.S. dollars or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or

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a combination of money and U.S. government obligations (or equivalent government obligations, as applicable),

in each case sufficient, in the written opinion (with respect to U.S. or equivalent government obligations or a combination of money and U.S. or equivalent government obligations, as applicable) of a nationally recognized firm of independent registered public accountants to pay and discharge, and which will be applied by the trustee to pay and discharge, all of the principal (including mandatory sinking fund payments), interest and any premium at due date or maturity;

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in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, under then applicable U.S. federal income tax law, the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same U.S. federal income tax as would be the case if the deposit, defeasance and discharge did not occur;

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in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same U.S. federal income tax as would be the case if the deposit and covenant defeasance did not occur;

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no Event of Default or default with respect to the outstanding debt securities of that series has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;

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the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all debt securities of a series were in default within the meaning of such Act;

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the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are a party;

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if debt securities are to be redeemed before the stated maturity date (other than from mandatory sinking fund payments or analogous payments), we have delivered satisfactory notice of redemption to the trustee;

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the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and

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we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with respect to the legal defeasance or covenant defeasance have been complied with.

Concerning our Relationship with the Trustee

We and our subsidiaries maintain ordinary banking relationships and credit facilities with U.S. Bank National Association.

DESCRIPTION OF WARRANTS

The following description, together with the additional information that we include in any applicable prospectus supplements and in any related free writing prospectus that we may authorize to be distributed to you, summarizes the material terms and provisions of the warrants that we may offer under this prospectus. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.

We will file as exhibits to the registration statement of which this prospectus is a part, or incorporate by reference from reports that we file with the SEC, the form of warrant agreement that describes the terms of the warrants we are offering, and any supplemental agreements, before the issuance of the related warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and any supplemental agreements applicable to a particular warrant. We urge you to read the applicable prospectus supplements related to the particular warrants that we may offer under this prospectus, as well as any related free writing prospectuses and the complete warrant agreement and any supplemental agreements that contain the terms of the warrants.

We may issue (either separately or together with other offered securities) warrants to purchase underlying debt securities, serial preferred shares, common shares or any combination thereof issued by us (“offered warrants”). Such warrants may be issued independently or together with any such securities and may be attached or separate from the securities. We may issue the warrants under separate warrant agreements (each a “warrant agreement”) to be entered into between us and a bank or trust company, as warrant agent (the “warrant agent”), identified in the prospectus supplement. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders of beneficial owners of warrants.

General

You should read the prospectus supplement for the material terms of the offered warrants, including the following:

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the title and aggregate number of the warrants;

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the title, rank, aggregate principal amount and terms of the underlying debt securities, serial preferred shares or common shares purchasable upon exercise of the warrants;

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the principal amount of underlying debt securities, serial preferred shares or common shares that may be purchased upon exercise of each warrant, and the price or the manner of determining the price at which this principal amount may be purchased upon exercise;

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the currency or currencies, including composite currencies, in which the price of such warrants may be payable;

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the price at which and the currencies, including composite currencies, in which the securities purchasable upon exercise of such warrants will commence and the date on which such right will expire;

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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;

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if applicable, the title, rank, aggregate principal amount and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;

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if applicable, the date on and after which such warrants and related securities will be separately transferable;

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any optional redemption terms;

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whether certificates evidencing the warrants will be issued in registered or bearer form and, if registered, where they may be transferred and exchanged; and

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any other material terms of the warrants.

The prospectus supplement will also contain a discussion of the United States federal income tax considerations relevant to the offering.

Warrant certificates will be exchangeable for new warrant certificates of different denominations. No service charge will be imposed for any permitted transfer or exchange of warrant certificates, but we may require payment of any tax or other governmental charge payable in connection therewith. Warrants may be exercised and exchanged and warrants in registered form may be presented for registration or transfer at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement or term sheet.

Exercise of Warrants

Each offered warrant will entitle the holder thereof to purchase the amount of underlying debt securities, serial preferred shares, common shares or any combination thereof at the exercise price set forth in, or calculable from, the prospectus supplement relating to the offered warrants. After the close of business on the expiration date, unexercised warrants will be void.

Warrants may be exercised by payment to the warrant agent of the applicable exercise price and by delivery to the warrant agent of the related warrant certificate, properly completed. Warrants will be deemed to have been exercised upon receipt of the exercise price and the warrant certificate or certificates. Upon receipt of this payment and the properly completed warrant certificates, we will, as soon as practicable, deliver the amount of underlying debt securities, serial preferred shares, common shares or any combination thereof purchased upon exercise.

If fewer than all of the warrants represented by any warrant certificate are exercised, a new warrant certificate will be issued for the unexercised warrants. The holder of a warrant will be required to pay any tax or other governmental charge that may be imposed in connection with any transfer involved in the issuance of underlying debt securities, serial preferred shares, common shares or other combination thereof purchased upon exercise.

Amendments and Supplements to Warrant Agreement

We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not adversely affect the interests of the holders of the warrants.

No Rights as Holders of Underlying Debt Securities, Serial Preferred Shares or Common Shares

Before the warrants are exercised, holders of the warrants are not entitled to payments of principal of, premium, if any, or interest on the related underlying debt securities and dividends on the serial preferred shares, common shares or any combination thereof, as applicable, or to exercise any rights whatsoever as holders of the underlying debt securities, serial preferred shares or common shares.

DESCRIPTION OF UNITS

The following description, together with the additional information that we include in any applicable prospectus supplements and in any related free writing prospectus that we may authorize to be distributed to you, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.

We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.

General

We may issue units comprised of one or more of the securities offered hereby in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.

We will describe in the applicable prospectus supplement the terms of the series of units being offered, including:

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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;

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any provisions of the governing unit agreement that differ from those described below; and

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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.

The provisions described in this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities and Guarantees” and “Description of Warrants” will apply to each unit and to any common shares, serial preferred shares, debt securities or warrants included in each unit, respectively.

Issuance in Series

We may issue units in such amounts and in such numerous distinct series as we determine.

Enforceability of Rights by Holders of Units

Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.

LEGAL OWNERSHIP OF SECURITIES

We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, registrar, transfer agent, depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.

Book-Entry Holders

We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.

Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.

As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.

Street Name Holders

We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.

For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.

Legal Holders

Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.

For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.

Special Considerations For Indirect Holders

If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:

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how it handles securities payments and notices;

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whether it imposes fees or charges;

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how it would handle a request for the holders’ consent, if ever required;

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whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;

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how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and

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if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.

Global Securities

A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.

Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.

A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under the section entitled “Special Situations When a Global Security Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.

If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.

Special Considerations For Global Securities

The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We

do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.

If securities are issued only in the form of a global security, an investor should be aware of the following:

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an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;

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an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;

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an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;

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an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;

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the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security;

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we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;

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the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and

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financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.

There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.

Special Situations When a Global Security Will Be Terminated

In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.

Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:

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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;

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if we notify any applicable trustee that we wish to terminate that global security; or

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if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived, and DTC requests physical certificates.

The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not us or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.

PLAN OF DISTRIBUTION

We and/or selling security holders, if applicable, may sell the securities, separately or together in units, in several ways, including:

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through underwriters or dealers;

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through agents; or

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directly to a limited number of purchasers or to a single purchaser.

The prospectus supplement with respect to a particular offering of securities will set forth the terms of the offering of such securities, including the name or names of any underwriters or agents, the purchase price of such securities, the proceeds to us from such sale, any underwriting discounts and other items constituting underwriters’ compensation, any initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which such securities may be listed.

If we and/or selling security holders, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

Only underwriters named in a prospectus supplement will be deemed to be underwriters in connection with the securities described in such prospectus supplement. Firms not so named will have no direct or indirect participation in the underwriting of such securities, although such a firm may participate in the distribution of such securities under circumstances entitling it to a dealer’s commission. We anticipate that any underwriting agreement pertaining to any such securities will:

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entitle the underwriters to indemnification by us against certain civil liabilities under the Securities Act of 1933, as amended, (the “Act”) or to contribution with respect to payments which the underwriters may be required to make in respect of such liabilities;

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provide that the obligations of the underwriters will be subject to certain conditions precedent; and

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provide that the underwriters generally will be obligated to purchase all such securities if any are purchased.

Securities also may be offered directly by us and/or selling security holders or through agents designated by us from time to time. Any such agent will be named, and the terms of any such agency (including any commissions payable by us to any such agent) will be set forth, in the prospectus supplement relating to such securities. Unless otherwise indicated in such prospectus supplement, any such agent will act on a best efforts basis for the period of its appointment. Agents named in a prospectus supplement may be deemed to be underwriters (within the meaning of the Act) of the securities described in such prospectus supplement and, under agreements which may be entered into with us, may be entitled to indemnification by us against certain civil liabilities under the Act or to contribution with respect to payments which the agents may be required to make in respect of such liabilities.

We may enter into derivative or other hedging transactions with financial institutions. These financial institutions may in turn engage in sales of common shares to hedge their position, deliver this prospectus in connection with some or all of those sales and use the shares covered by this prospectus to close out any short position created in connection with those sales. We may also sell common shares short using this prospectus and deliver common shares covered by this prospectus to close out such short positions, or loan or pledge common shares to financial institutions that in turn may sell the common shares using this prospectus. We may pledge or

grant a security interest in some or all of the common shares covered by this prospectus to support a derivative or hedging position or other obligations and, if we default in the performance of our obligations, the pledgees or secured parties may offer and sell the common shares from time to time pursuant to this prospectus.

Underwriters and agents may be customers of, engage in transactions with, or perform services for, us and our subsidiaries in the ordinary course of business.

If so indicated in a prospectus supplement, we will authorize underwriters, dealers or other agents of ours to solicit offers by certain specified entities to purchase securities from us pursuant to contracts providing for payment and delivery at a future date. The obligations of any purchaser under any such contract will not be subject to any conditions except those described in such prospectus supplement. Such prospectus supplement will set forth the commissions payable for solicitations of such contracts.

Underwriters and agents may from time to time purchase and sell securities in the secondary market, but are not obligated to do so, and there can be no assurance that there will be a secondary market for the securities or liquidity in the secondary market if one develops. From time to time, underwriters and agents may make a market in the securities but are not obligated to do so and may cease to do so at any time.

One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Act, as amended, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.

LEGAL MATTERS

Certain legal matters in connection with the securities to be offered by this prospectus will be passed upon for us by Calfee, Halter & Griswold LLP, Cleveland, Ohio. Any underwriters, dealers or agents will be advised by their own legal counsel concerning issues relating to any offering.

EXPERTS

The consolidated financial statements of The J. M. Smucker Company for the year ended April 30, 2011 appearing in The J. M. Smucker Company’s Current Report on Form 8-K (dated October 13, 2011) and the effectiveness of The J. M. Smucker Company’s internal control over financial reporting as of April 30, 2011 included in The J. M. Smucker Company’s 2011 Annual Report to Shareholders and incorporated by reference in The J. M. Smucker Company’s Annual Report on Form 10-K for the year ended April 30, 2011 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in its reports thereon, included and incorporated by reference therein, and incorporated herein by reference. Such consolidated financial statements and The J. M. Smucker Company management’s assessment of the effectiveness of internal control over financial reporting as of April 30, 2011 are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14.

Other Expenses of Issuance and Distribution

The following is an estimate, subject to future contingencies, of the expenses to be incurred by the registrants in connection with the issuance and distribution of the securities being registered:


		Amount to be Paid
Registration fee		*
Legal fees and expenses		**
Trustee fees and expenses		**
Accounting fees and expenses		**
Printing and engraving fees		**
Miscellaneous		**

Total

(*)	Deferred in reliance upon Rules 456(b) and 457(r).

(**)

Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are not currently determinable. The foregoing sets forth the general categories of fees and expenses that we anticipate we will incur in connection with the offering of securities under the registration statement. An estimate of the aggregate fees and expenses in connection with the distribution of the securities being offered will be included in any applicable prospectus supplement.

Item 15.

Indemnification of Directors and Officers

The J. M. Smucker Company

Article V of our amended regulations provides that any person made a party to or threatened to be made a party to or otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or an officer of ours, or is or was serving at our request as a director, officer, employee or agent of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such action, suit or proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, will be indemnified and held harmless by us to the fullest extent permitted or required by the Ohio General Corporation Law, as the same exists or may in the future be amended to provide broader rights to indemnification, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by the indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of Article V of our amended regulations with respect to actions, suits or proceedings to enforce rights to indemnification, we will indemnify any such indemnitee in connection with an action, suit or proceeding (or part thereof) initiated by the indemnitee only if the action, suit or proceeding (or part thereof) was authorized by our board of directors.

The indemnification rights conferred in Article V of our amended regulations include the right to be paid by the Company the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any action, suit or proceeding in advance of its final disposition; provided, however, that, if the Ohio General Corporation Law so requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by the indemnitee, including, without limitation, service to an employee benefit plan) will be made only upon delivery to us of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it is ultimately determined by final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified for the expenses.

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The rights to indemnification conferred by our amended regulations are not exclusive of any other right to which any person seeking indemnification may have or acquire under any statute, our amended articles of incorporation, our amended regulations, or any agreement, vote of shareholders or disinterested directors, or otherwise, and will continue as to a person who has ceased to be a director, officer, employee or agent and will inure to the benefit of the heirs, executors and administrators of such person.

Section 1701.13(E) of the Ohio Revised Code provides as follows:

(E)(1) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.

(2) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any of the following:

(a) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought determines, upon application, that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper;

(b) Any action or suit in which the only liability asserted against a director is pursuant to section 1701.95 of the Revised Code.

(3) To the extent that a director, trustee, officer, employee, member, manager, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding.

(4) Any indemnification under division (E)(1) or (2) of this section, unless ordered by a court, shall be made by the corporation only as authorized in the specific case, upon a determination that indemnification

of the director, trustee, officer, employee, member, manager, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in division (E)(1) or (2) of this section. Such determination shall be made as follows:

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(a) By a majority vote of a quorum consisting of directors of the indemnifying corporation who were not and are not parties to or threatened with the action, suit, or proceeding referred to in division (E)(1) or (2) of this section;

(b) If the quorum described in division (E)(4)(a) of this section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the corporation or any person to be indemnified within the past five years;

(d) By the court of common pleas or the court in which the action, suit, or proceeding referred to in division (E)(1) or (2) of this section was brought.

Any determination made by the disinterested directors under division (E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the corporation under division (E)(2) of this section, and, within ten days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination.

(5)(a) Unless at the time of a director’s act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply to the corporation and unless the only liability asserted against a director in an action, suit, or proceeding referred to in division (E)(1) or (2) of this section is pursuant to section 1701.95 of the Revised Code, expenses, including attorney’s fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to do both of the following:

(i) Repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation;

(ii) Reasonably cooperate with the corporation concerning the action, suit, or proceeding.

(b) Expenses, including attorney’s fees, incurred by a director, trustee, officer, employee, member, manager, or agent in defending any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, may be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, as authorized by the directors in the specific case, upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, member, manager, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the corporation.

(6) The indemnification authorized by this section shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under the articles, the regulations, any agreement, a vote of shareholders or disinterested directors, or otherwise, both as to action in their official capacities and as to action in another capacity while holding their offices or positions, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, member, manager, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

(7) A corporation may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other

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enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. Insurance may be purchased from or maintained with a person in which the corporation has a financial interest.

(8) The authority of a corporation to indemnify persons pursuant to division (E)(1) or (2) of this section does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this section do not create any obligation to repay or return payments made by the corporation pursuant to division (E)(5), (6), or (7).

(9) As used in division (E) of this section, “corporation” includes all constituent entities in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, trustee, member, manager, or agent of such a constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, shall stand in the same position under this section with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity.

We currently maintain insurance coverage for the benefit of directors and executive officers with respect to many types of claims that may be made against them; however, there is no assurance of the continuation or renewal of such insurance. In addition, we may enter into indemnification agreements with each of our directors and executive officers that indemnify them to the maximum extent permitted by law.

J.M. Smucker LLC

Article V, Section 5.01(d) of the Second Amended and Restated Operating Agreement (the “Operating Agreement”) of J.M. Smucker LLC (“Smucker LLC”) provides for indemnification by Smucker LLC to the member and the officers of Smucker LLC for any loss or liability paid or incurred by the member or any such officer, and all fees, costs and expenses associated therewith, including, without limitation, reasonable attorneys’ fees, costs and expenses arising out of or related to any act performed by them within the scope of the authority conferred upon the member or such officer by the Operating Agreement; provided, however, that such indemnity is payable only if the member or officer, as applicable, (i) acted in good faith and in a manner he, she or it reasonably believed to be in, or not opposed to, the best interests of Smucker LLC, and (ii) had no reasonable grounds to believe that his, her or its conduct was negligent or unlawful. No indemnification may be made with respect to any act or omission of the member or such officer for which the member or officer has been adjudged to be liable for gross negligence or willful misconduct in the performance of his, her or its duty to Smucker LLC unless, and only to the extent that, the court in which such action or suit was brought determines that in view of all the circumstances of the case, despite the adjudication of liability for gross negligence or willful misconduct, the member or such officer is fairly and reasonably entitled to indemnity for those expenses which the court deems proper. To the extent not covered by insurance maintained by Smucker LLC, any indemnity under Section 5.01(d) of the Operating Agreement will be paid from, and only to the extent of, Smucker LLC’s assets, and neither the member nor such officer will have any personal liability to indemnify the member or Smucker LLC on account thereof.

Section 1705.32 of the Ohio Revised Code provides as follows:

(A) A limited liability company may indemnify or agree to indemnify any person who was or is a party, or who is threatened to be made a party, to any threatened, pending, or completed civil, criminal, administrative, or investigative action, suit, or proceeding, other than an action by or in the right of the company, because he is or was a manager, member, partner, officer, employee, or agent of the company or is or was serving at the request of the company as a manager, director, trustee, officer, employee, or agent of

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another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The company may indemnify or agree to indemnify a person in that position against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement that actually and reasonably were incurred by him in connection with the action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the company and, in connection with any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent does not create of itself a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the company and, in connection with any criminal action or proceeding, a presumption that he had reasonable cause to believe that his conduct was unlawful.

(B) A limited liability company may indemnify or agree to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the company to procure a judgment in its favor, because he is or was a manager, officer, employee, or agent of the company or is or was serving at the request of the company as a manager, member, partner, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The company may indemnify or agree to indemnify a person in that position against expenses, including attorney’s fees, that were actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the company, except that an indemnification shall not be made in respect of any claim, issue, or matter as to which the person is adjudged to be liable for negligence or misconduct in the performance of his duty to the company unless and only to the extent that the court of common pleas or the court in which the action or suit was brought determines, upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnification for expenses that the court considers proper.

(C) To the extent that a manager, officer, employee, or agent of a limited liability company has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (A) or (B) of this section or has been successful in defense of any claim, issue, or matter in an action, suit, or proceeding referred to in those divisions, he shall be indemnified against expenses, including attorney’s fees, that were actually and reasonably incurred by him in connection with the action, suit, or proceeding.

(D)(1) Unless ordered by a court and subject to division (C) of this section, any indemnification under division (A) or (B) of this section shall be made by the limited liability company only as authorized in the specific case, upon a determination that indemnification of the manager, officer, employee, or agent is proper under the circumstances because he has met the applicable standard of conduct set forth in division (A) or (B) of this section. The determination shall be made in any of the following ways:

(a) By a majority vote of a quorum consisting of managers of the indemnifying company who were not and are not parties to or threatened to be made parties to the action, suit, or proceeding referred to in division (A) or (B) of this section;

(b) Whether or not a quorum as described in division (D)(1)(a) of this section is obtainable and if a majority vote of a quorum of disinterested managers so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the company or any person to be indemnified within the past five years;

(d) By the court of common pleas or the court in which the action, suit, or proceeding referred to in division (A) or (B) of this section was brought.

(2) Any determination made by the disinterested managers under division (D)(1)(a) of this section or by independent legal counsel under division (D)(1)(b) of this section shall be promptly communicated to the person who threatened or brought an action or suit by or in the right of the limited liability company under

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division (B) of this section. Within ten days after receipt of that notification, the person has the right to petition the court of common pleas or the court in which the action or suit was brought to review the reasonableness of the determination.

(E) The indemnification authorized by this section is not exclusive of and shall be in addition to any other rights granted to those seeking indemnification under the operating agreement, any other agreement, a vote of members or disinterested managers of the limited liability company, or otherwise, both as to action in their official capacities and as to action in another capacity while holding their offices or positions. The indemnification shall continue as to a person who has ceased to be a manager, officer, employee, or agent of the company and shall inure to the benefit of his heirs, executors, and administrators.

(F) A limited liability company may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, for or on behalf of any person who is or was a manager, member, partner, officer, employee, or agent of the company or who is or was serving at the request of the company as a manager, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The insurance or similar protection purchased or maintained for those persons may be for any liability asserted against them and incurred by them in any capacity described in this division or for any liability arising out of their status as described in this division, whether or not the company would have the power to indemnify them against that liability under this section. Insurance may be so purchased from or so maintained with a person in which the company has a financial interest.

(G) The authority of a limited liability company to indemnify persons pursuant to division (A) or (B) of this section does not limit the payment of expenses as they are incurred, in advance of the final disposition of an action, suit, or proceeding, or the payment of indemnification, insurance, or other protection that may be provided pursuant to division (E) or (F) of this section. Divisions (A) and (B) of this section do not create any obligation to repay or return payments made by the company pursuant to division (E) or (F) of this section.

(H) As used in this section, “limited liability company” includes all constituent limited liability companies in a consolidation or merger and the new or surviving entity. Any person who is or was a manager, officer, employee, or agent of a constituent limited liability company or who is or was a manager, officer, employee, or agent of a constituent limited liability company as a manager, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise stands in the same position under this section with respect to the new or surviving entity as he would if he had served the new or surviving entity in the same capacity.

The Folgers Coffee Company

Pursuant to the Delaware General Corporation Law (the “DGCL”), a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than a derivative action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to such corporation unless the

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Delaware Court of Chancery or the court in which such action or suit was brought will determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses which such court will deem proper.

To the extent a present or former director or officer is successful in the defense of such an action, suit or proceeding, the corporation is required by the DGCL to indemnify such person for actual and reasonable expenses incurred thereby. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person is not entitled to be so indemnified. Such expenses (including attorney’s fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

The DGCL provides that the indemnification described above will not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, and agreement or otherwise.

The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.

The Amended and Restated Certificate of Incorporation of The Folgers Coffee Company (“Folgers”) also provides that the directors of Folgers will incur no personal liability to Folgers or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that such director liability will not be limited or eliminated (i) for any breach of the director’s duty of loyalty to Folgers or its stockholders; (ii) for any acts or omissions by the director not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL; or (iv) for any transaction from which the director derived an improper personal benefit.

Item 16.

Exhibits

See Exhibit Index.

Item 17.

Undertakings

Each of the undersigned registrants hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission

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pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however , that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrants pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

(i) Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(5) That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each of the undersigned registrants undertakes that in a primary offering of securities of each of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, each of the undersigned registrants will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants;

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(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and

(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.

(6) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer, or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

II-9

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orrville, State of Ohio, on this 13 ^th day of October, 2011.


THE J. M. SMUCKER COMPANY

By:		/s/ R ICHARD K. S MUCKER
Name:		Richard K. Smucker
Title:		Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard K. Smucker, Mark R. Belgya and Jeannette L. Knudsen, or any one of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution for him in his name, place and stead, in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, or any of them, full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his substitute or substitutes may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated.


Signature	Title	Date

/s/ T IMOTHY P. S MUCKER Timothy P. Smucker	Chairman of the Board and Director	October 13, 2011

/s/ R ICHARD K. S MUCKER Richard K. Smucker	Chief Executive Officer and Director (Principal Executive Officer)	October 13, 2011

/s/ M ARK R. B ELGYA Mark R. Belgya	Senior Vice President and Chief Financial Officer (Principal Financial Officer)	October 13, 2011

/s/ J OHN W. D ENMAN John W. Denman	Vice President and Controller (Principal Accounting Officer)	October 13, 2011

/s/ V INCENT C. B YRD Vincent C. Byrd	Director	October 13, 2011

/s/ R. D OUGLAS C OWAN R. Douglas Cowan	Director	October 13, 2011

/s/ K ATHRYN W. D INDO Kathryn W. Dindo	Director	October 13, 2011

II-10


Signature	Title	Date

/s/ P AUL J. D OLAN Paul J. Dolan	Director	October 13, 2011

/s/ N ANCY L OPEZ K NIGHT Nancy Lopez Knight	Director	October 13, 2011

/s/ E LIZABETH V ALK L ONG Elizabeth Valk Long	Director	October 13, 2011

/s/ G ARY A. O ATEY Gary A. Oatey	Director	October 13, 2011

/s/ M ARK T. S MUCKER Mark T. Smucker	Director	October 13, 2011

/s/ A LEX S HUMATE Alex Shumate	Director	October 13, 2011

/s/ W ILLIAM H. S TEINBRINK William H. Steinbrink	Director	October 13, 2011

/s/ P AUL S MUCKER W AGSTAFF Paul Smucker Wagstaff	Director	October 13, 2011

II-11

SIGNATURES


J.M. SMUCKER LLC

By:		/s/ R ICHARD K. S MUCKER
Name:		Richard K. Smucker
Title:		Chief Executive Officer

POWER OF ATTORNEY

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated.


Signature	Title	Date

/s/ R ICHARD K. S MUCKER Richard K. Smucker	Chief Executive Officer (Principal Executive Officer) of J.M. Smucker LLC, and Director and Chief Executive Officer of JMS Manufacturing, Inc. (its sole member)	October 13, 2011

/s/ M ARK R. B ELGYA Mark R. Belgya	Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) of J.M. Smucker LLC, and Vice President and Chief Financial Officer of JMS Manufacturing, Inc. (its sole member)	October 13, 2011

/s/ S TEVEN O AKLAND Steven Oakland	President and Director of JMS Manufacturing, Inc. (its sole member)	October 13, 2011

II-12

SIGNATURES


THE FOLGERS COFFEE COMPANY

By:		/s/ R ICHARD K. S MUCKER
Name:		Richard K. Smucker
Title:		Chief Executive Officer

POWER OF ATTORNEY

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated.


Signature	Title	Date

/ S / R ICHARD K. S MUCKER Richard K. Smucker	Chief Executive Officer and Director (Principal Executive Officer)	October 13, 2011

/s/ M ARK R. B ELGYA Mark R. Belgya	Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	October 13, 2011

/s/ M ARK T. S MUCKER Mark T. Smucker	President and Director	October 13, 2011

II-13

EXHIBIT INDEX


Exhibit No.		Description

1.1**		Form of Underwriting Agreement.

4.1*		Form of Indenture between The J. M. Smucker Company and U.S. Bank National Association.

4.2**		Form of Debt Securities.

4.3**		Form of Warrant Agreement.

4.4**		Form of Common Shares Warrant Certificate.

4.5**		Form of Preferred Shares Warrant Certificate.

4.6**		Form of Debt Securities Warrant Certificate.

4.7*		Third Amended and Restated Intercreditor Agreement, dated June 11, 2010, among KeyBank National Association and Bank of Montreal, as administrative agents, and the other parties identified therein.

5.1*		Opinion of Calfee, Halter & Griswold LLP.

5.2*		Opinion of Harter, Secrest & Emery LLP.

12.1*		Computation of Ratio of Earnings to Fixed Charges.

23.1*		Consent of Ernst & Young LLP.

23.2*		Consent of Calfee, Halter & Griswold LLP (included in opinion filed herewith as Exhibit 5.1).

24.1*		Powers of Attorney (included on signature pages).

25.1*		Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of U.S. Bank National Association.

*	Filed herewith.

**	To be filed by amendment or as an exhibit to a report filed under the Securities Exchange Act of 1934 and incorporated herein by reference.

II-14

Exhibit 4.1

THE J. M. SMUCKER COMPANY

and

U.S. BANK NATIONAL ASSOCIATION, as Trustee

Indenture

Dated as of [ ], 2011

Providing for Issuance of Debt Securities

TABLE OF CONTENTS


		P AGE
ARTICLE 1
D EFINITIONS AND O THER P ROVISIONS OF G ENERAL A PPLICATION

Section 1.01 .	Definitions		1
Section 1.02 .	Officers’ Certificates and Opinions		9
Section 1.03 .	Form of Documents Delivered to Trustee		10
Section 1.04 .	Acts of Securityholders		10
Section 1.05 .	Notices, etc., to Trustee and Company		12
Section 1.06 .	Notice To Securityholders; Waiver		12
Section 1.07 .	Conflict with Trust Indenture Act		12
Section 1.08 .	Effect of Headings and Table of Contents		13
Section 1.09 .	Successors and Assigns		13
Section 1.10 .	Separability Clause		13
Section 1.11 .	Benefits Of Indenture		13
Section 1.12 .	Governing Law		13
Section 1.13 .	Counterparts		13
Section 1.14 .	Judgment Currency		13
Section 1.15 .	Legal Holidays		14
Section 1.16.	Exemption from Individual Liability		14

	ARTICLE 2 S ECURITY F ORMS

Section 2.01 .	Forms Generally		15
Section 2.02 .	Forms of Securities		15
Section 2.03 .	Securities in Global Form		15
Section 2.04 .	Form of Trustee’s Certificate of Authentication		16

	ARTICLE 3 T HE S ECURITIES

Section 3.01 .	General Title; General Limitations; Issuable in Series; Terms of Particular Series		16
Section 3.02 .	Denominations and Currency		20
Section 3.03 .	Execution, Authentication and Delivery, and Dating		20
Section 3.04 .	Temporary Securities		22
Section 3.05 .	Registration, Transfer and Exchange		23
Section 3.06 .	Mutilated, Destroyed, Lost and Stolen Securities		25
Section 3.07 .	Payment of Interest; Interest Rights Preserved		26
Section 3.08 .	Persons Deemed Owners		27
Section 3.09 .	Cancellation		28
Section 3.10 .	Computation of Interest		28


	ARTICLE 4 S ATISFACTION AND D ISCHARGE

Section 4.01 .	Satisfaction and Discharge of Indenture	28
Section 4.02.	Discharge and Defeasance	30
Section 4.03 .	Covenant Defeasance	30
Section 4.04.	Conditions To Defeasance Or Covenant Defeasance	31
Section 4.05 .	Application of Trust Money; Excess Funds	33
Section 4.06 .	Paying Agent to Repay Moneys Held	34
Section 4.07 .	Return of Unclaimed Amounts	34

	ARTICLE 5 R EMEDIES

Section 5.01 .	Events of Default	35
Section 5.02 .	Acceleration of Maturity; Rescission, and Annulment	36
Section 5.03.	Collection of Indebtedness and Suits for Enforcement by Trustee	37
Section 5.04 .	Trustee May File Proofs of Claim	38
Section 5.05 .	Trustee May Enforce Claims Without Possession of Securities	39
Section 5.06 .	Application of Money Collected	39
Section 5.07 .	Limitation on Suits	40
Section 5.08 .	Unconditional Right of Securityholders to Receive Principal, Premium, and Interest	40
Section 5.09 .	Restoration of Rights and Remedies	40
Section 5.10 .	Rights and Remedies Cumulative	41
Section 5.11 .	Delay or Omission Not Waiver	41
Section 5.12 .	Control by Securityholders	41
Section 5.13 .	Waiver of Past Defaults	41
Section 5.14 .	Undertaking for Costs	42
Section 5.15 .	Waiver of Stay or Extension Laws	42

	ARTICLE 6
	T HE T RUSTEE

Section 6.01 .	Certain Duties and Responsibilities of Trustee	42
Section 6.02 .	Notice of Defaults	44
Section 6.03 .	Certain Rights of Trustee	44
Section 6.04 .	Not Responsible for Recitals or Issuance of Securities	46
Section 6.05 .	May Hold Securities	46
Section 6.06 .	Money Held in Trust	46
Section 6.07.	Compensation and Reimbursement	46
Section 6.08 .	Disqualification; Conflicting Interests	47
Section 6.09 .	Corporate Trustee Required; Eligibility	47
Section 6.10 .	Resignation and Removal; Appointment of Successor	47
Section 6.11 .	Acceptance of Appointment by Successor	49


Section 6.12.	Merger, Conversion, Consolidation or Succession to Business	50
Section 6.13 .	Preferential Collection of Claims Against Company	51
Section 6.14 .	Appointment of Authenticating Agent	51

	ARTICLE 7
	S ECURITYHOLDERS ’ L ISTS AND R EPORTS BY T RUSTEE AND C OMPANY

Section 7.01.	Company to Furnish Trustee Names and Addresses of Securityholders	52
Section 7.02 .	Preservation of Information; Communications to Securityholders	53
Section 7.03 .	Reports by Trustee	54
Section 7.04.	Reports by Company	54

	ARTICLE 8
	C ONSOLIDATION , M ERGER , C ONVEYANCE OR T RANSFER

Section 8.01 .	Company May Consolidate, etc., Only on Certain Terms	55
Section 8.02 .	Successor Corporation Substituted	56

	ARTICLE 9
	S UPPLEMENTAL I NDENTURES

Section 9.01 .	Supplemental Indentures Without Consent of Securityholders	56
Section 9.02 .	Supplemental Indentures With Consent of Securityholders	58
Section 9.03 .	Execution of Supplemental Indentures	59
Section 9.04 .	Effect of Supplemental Indentures	60
Section 9.05 .	Conformity With Trust Indenture Act	60
Section 9.06 .	Reference in Securities to Supplemental Indentures	60

	ARTICLE 10
	C OVENANTS

Section 10.01 .	Payment of Principal, Premium and Interest	60
Section 10.02 .	Maintenance of Office or Agency	60
Section 10.03 .	Money or Security Payments to Be Held in Trust	61
Section 10.04 .	Certificate to Trustee	62
Section 10.05 .	Corporate Existence	62
Section 10.06 .	Limitation on Liens	62
Section 10.07 .	Limitation on Sale and Lease-Back	64
Section 10.08 .	Waiver of Certain Covenants	65

	ARTICLE 11
	R EDEMPTION OF S ECURITIES

Section 11.01 .	Applicability of Article	65
Section 11.02 .	Election to Redeem; Notice to Trustee	66

iii


Section 11.03.	Selection by Trustee of Securities to be Redeemed	66
Section 11.04 .	Notice of Redemption	66
Section 11.05 .	Deposit of Redemption Price	67
Section 11.06 .	Securities Payable on Redemption Date	67
Section 11.07 .	Securities Redeemed in Part	68
Section 11.08 .	Provisions with Respect to any Sinking Funds	68

	ARTICLE 12 R EPAYMENT AT O PTION OF H OLDERS

Section 12.01 .	Applicability of Article	70
Section 12.02 .	Repayment of Securities	70
Section 12.03 .	Exercise of Option	70
Section 12.04 .	When Securities Presented for Repayment Become Due and Payable	70
Section 12.05 .	Securities Repaid in Part	71

THIS INDENTURE, between The J. M. Smucker Company, an Ohio corporation (hereinafter called the “ Company ”) having its principal office at One Strawberry Lane, Orrville, Ohio 44667, and U.S. Bank National Association, a national banking association, as trustee (hereinafter called the “ Trustee ”), is made and entered into as of this [ — ] day of [ — ], 2011.

Recitals of the Company

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of its unsecured debentures, notes, bonds, and other evidences of indebtedness, to be issued in one or more fully registered series.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

Agreements of the Parties

To set forth or to provide for the establishment of the terms and conditions upon which the Securities (as hereinafter defined) are and are to be authenticated, issued, and delivered, and in consideration of the premises thereof, and the purchase of Securities by the Holders (as hereinafter defined) thereof, it is mutually covenanted and agreed as follows, for the equal and proportionate benefit of all Holders from time to time of the Securities or of any series thereof, as the case may be:

ARTICLE 1

D EFINITIONS AND O THER P ROVISIONS OF G ENERAL A PPLICATION

Section 1.01 . Definitions. For all purposes of this Indenture and of any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

(b) all other terms used herein which are defined in the Trust Indenture Act (as hereinafter defined), either directly or by reference therein, have the meanings assigned to them therein;

(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; and

(d) all references in this instrument to designated “ Articles ”, “ Sections ” and other subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, or other subdivision.

“ Act ”, when used with respect to any Securityholder (as hereinafter defined), has the meaning specified in Section 1.04.

“ Affiliate ” of any specified Person (as hereinafter defined) means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Attributable Debt ” means the present value (discounted at the inherent interest rate as determined by the Company in good faith, compounded semi-annually) of the obligation of a lessee for rental payments during the remaining term of any lease (including any period for which such lease has been extended). Any determination of any actual percentage rate inherent in any such arrangement made in good faith by the Company shall be binding and conclusive, and the Trustee shall have no duty with respect to any determination made under Section 10.06.

“ Authenticating Agent ” means any Person authorized by the Trustee to authenticate Securities of one or more series under Section 6.14.

“ Authentication Order ” has the meaning specified in Section 3.03.

“ Board of Directors ” means (i) the board of directors of the Company, (ii) any duly authorized committee of that board, or (iii) any officer, director, or authorized representative of the Company, in each case duly authorized by such Board to act hereunder.

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Chairman ” means the Company’s Chairman of the Board and Chief Executive Officer.

“ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.

“ Company ” means The J. M. Smucker Company, unless and until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Company ” shall mean such successor corporation.

“ Company Request ”, “ Company Order ”, and “ Company Consent ” mean, respectively, a written request, order, or consent signed in the name of the Company by its Chairman, Vice Chairman, Chief Financial Officer, Senior Vice President, or any Vice President (as hereinafter defined), or by any other officer or officers of the Company pursuant to an applicable Board Resolution, and delivered to the Trustee.

“ Consolidated Net Tangible Assets ” means the total assets appearing on the Company’s latest consolidated balance sheet contained in its most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, filed with the Commission, excluding the sum of (1) all current liabilities and (2) all goodwill, patents, copyrights, trademarks and other like intangibles.

“ Consolidated Shareholders’ Investment ” means, as of any particular time, the total amount of shareholders’ investment as shown in the latest consolidated balance sheet of the Company contained in the Company’s then most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, filed with the Commission.

“ Corporate Trust Office ” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at US Bank National Association, 1350 Euclid Avenue, Cleveland, Ohio 44115, Attention: Corporate Trust Services.

“ Corporation ” means a corporation, association, company, joint-stock company, limited liability company or business trust.

“ Covenant Defeasance ” has the meaning specified in Section 4.03.

“ Debt ” has the meaning specified in Section 10.06.

“ Defaulted Interest ” has the meaning specified in Section 3.07.

“ Defeasance ” has the meaning specified in Section 4.02.

“ Depositary ” means with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person designated as Depositary

by the Company pursuant to Section 3.01, unless and until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Depositary ” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “ Depositary ” as used with respect to the Securities of any such series shall mean the “ Depositary ” with respect to the Securities of that series.

“ Equivalent Government Securities ” means, in relation to Securities denominated in a currency other than U.S. dollars, securities of the government that issued the currency in which such Securities are denominated or securities of government agencies backed by the full faith and credit of such government.

“ Event of Default ” has the meaning specified in Article 5.

“ Holder ”, “ Securityholder ” and “ Holder of Securities ” means a Person in whose name a Security is registered in the Security Register (as hereinafter defined).

“ Indenture ” or “ this Indenture ” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of any particular series of Securities established as contemplated by Section 3.01.

“ Intercreditor Agreement ” means the Third Amended and Restated Intercreditor Agreement, dated as of June 11, 2010, by and among the lenders under the Company’s credit facilities then existing, the holders of the Company’s 7.94% Series C Senior Notes due September 1, 2010, the holders of the Company’s 4.78% Senior Notes due June 1, 2014, the holders of the Company’s 5.55% Senior Notes due April 1, 2022, the holders of the Company’s 6.12% Senior Notes due November 1, 2015, the holders of the Company’s 6.63% Senior Notes due November 1, 2018, the holders of the Company’s 4.50% Senior Notes due June 1, 2025, KeyBank National Association, in its capacity as administrative agent under the credit agreement dated June 18, 2004, Bank of Montreal, in its capacity as administrative agent under the credit agreement dated October 29, 2009 and any holders of debt entered into by the Company or its subsidiaries after June 11, 2010 that are joined to the Intercreditor Agreement as provided therein.

“ Interest Payment Date ”, when used with respect to any series of Securities, means any date on which an installment of interest on those Securities is scheduled to be paid.

“ Maturity ”, when used with respect to any Security, means the date on which the principal amount outstanding under such Security or an installment of

principal amount outstanding under such Security becomes due and payable, as therein or herein provided, whether on the Scheduled Maturity Date (as hereinafter defined), by declaration of acceleration, call for redemption, or otherwise.

“ New York Business Day ” means (except, with respect to any particular series of Securities, as may be otherwise provided in the form of such Securities) any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation, or executive order to be closed.

“ Officers’ Certificate ” means a certificate signed by any two of the Chairman, Vice Chairman, Chief Financial Officer, Senior Vice President, any Vice President, the Treasurer, and any Assistant Treasurer of the Company, or by any other officer or officers of the Company pursuant to an applicable Board Resolution, and delivered to the Trustee.

“ Opinion of Counsel ” means a written opinion of counsel to the Company, which counsel may be an employee of the Company or other counsel who shall be reasonably acceptable to the Trustee.

“ Original Issue Discount Security ” means any Security which is initially sold at a discount from the principal amount thereof and the terms of which provide that upon redemption or acceleration of the Maturity thereof, an amount less than the principal amount thereof would become due and payable.

“ Outstanding ”, when used with respect to any particular Securities or to the Securities of any particular series means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:

(i) such Securities theretofore canceled by the Trustee or delivered by the Company to the Trustee for cancellation;

(ii) such Securities, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited in trust with the Trustee or with any Paying Agent (as hereinafter defined) other than the Company, or, if the Company shall act as its own Paying Agent, has been set aside and segregated in trust by the Company; provided, in any case, that if such Securities are to be redeemed prior to their Scheduled Maturity Date, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

(iii) such Securities in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, or which shall have been paid, in each case, pursuant to the terms of Section 3.06 (except with

respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a Person in whose hands such Security is a legal, valid, and binding obligation of the Company).

In determining whether the Holders of the requisite principal amount of such Securities Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof. In determining whether the Holders of the requisite principal amount of such Securities Outstanding have given a direction concerning the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or concerning the exercise of any trust or power conferred upon the Trustee under this Indenture, or concerning a consent on behalf of the Holders of any series of Securities to the waiver of any past default and its consequences, Securities owned by the Company, any other obligor upon the Securities, or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding. In determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver, only Securities which a Responsible Officer assigned to the corporate trust department of the Trustee knows to be owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act as owner with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.

“ Paying Agent ” means, with respect to any Securities, any Person appointed by the Company to distribute amounts payable by the Company on such Securities. If at any time there shall be more than one such Person, “Paying Agent” as used with respect to the Securities of any particular series shall mean the Paying Agent with respect to Securities of that series. As of the date of this Indenture, the Company has appointed the Trustee as Paying Agent with respect to all Securities issuable hereunder.

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government, or any agency or political subdivision thereof.

“ Place of Payment ” means with respect to any series of Securities issued hereunder the city or political subdivision so designated with respect to the series of Securities in question in accordance with the provisions of Section 3.01.

“ Predecessor Securities ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such

particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in lieu of a lost, destroyed, mutilated, or stolen Security shall be deemed to evidence the same debt as the lost, destroyed, mutilated, or stolen Security.

“ Principal Property ” means any manufacturing or processing plant or facility, warehouse, office facility or distribution center that is located within the continental United States. The Company’s Board of Directors (or any duly authorized committee of the Company’s Board of Directors) by resolution may create an exception by declaring that a plant or facility, together with all other plants and facilities previously so declared, is not of material importance to the total business conducted by the Company and the Restricted Subsidiaries of the Company as an entirety.

“ Record Date ” means any date as of which the Holder of a Security will be determined for any purpose described herein, such determination to be made as of the close of business on such date by reference to the Security Register.

“ Redemption Date ”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

“ Redemption Price ”, when used with respect to any Security to be redeemed, means the price specified in the Security at which it is to be redeemed pursuant to this Indenture.

“ Repayment Date ”, when used with respect to any Security to be repaid, means the date fixed for such repayment pursuant to such Security.

“ Repayment Price ”, when used with respect to any Security to be repaid, means the price at which it is to be repaid pursuant to such Security.

“ Responsible Officer ”, when used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having direct responsibility for the administration of this Indenture, and also, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

“ Restricted Subsidiary ” means any guarantor of such series and any Subsidiary (i) substantially all the property of which is located within the continental United States, (ii) which owns a Principal Property, and (iii) in which the Company’s investment, direct or indirect and whether in the form of equity, debt or advances, as shown on the consolidating balance sheet used in the preparation of the latest quarterly consolidated financial statements of the Company preceding the date of determination, is in excess of 5% of the total consolidated assets of the Company as shown on such quarterly consolidated financial statements; provided , however , that the term “Restricted Subsidiary”

shall not include any Subsidiary which is principally engaged in leasing or which is principally engaged in financing the Company’s operations.

“ Scheduled Maturity Date ”, when used with respect to any Security, means the date specified in such Security as the date on which all outstanding principal and interest will be due and payable.

“ Security ” or “ Securities ” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of indebtedness, as the case may be, of any series authenticated and delivered from time to time under this Indenture.

“ Security Register ” shall have the meaning specified in Section 3.05.

“ Security Registrar ” means the Person who maintains the Security Register, which Person shall be the Trustee unless and until a successor Security Registrar is appointed by the Company.

“ Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.

“ Specified Currency ” has the meaning specified in Section 3.01.

“ Subsidiary ” of any specified corporation means any corporation or other entity that is consolidated in such corporation’s financial statements, any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of that corporation (irrespective of whether or not, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned or controlled solely by the specified corporation or in conjunction with or by one or more subsidiaries, and any other entity of which at least a majority of the voting interest under ordinary circumstances is at the time owned or controlled solely by such specified corporation or in conjunction with or by one or more of its Subsidiaries, or both.

“ Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939, as in force as of the date hereof, except as provided in Section 9.05.

“ Trustee ” means the party named as such above until a successor becomes such pursuant to this Indenture and thereafter means or includes each party who is then a trustee hereunder, and if at any time there is more than one such party, “Trustee” as used with respect to the Securities of any series means the Trustee with respect to Securities of that series. If Trustees with respect to different series of Securities are trustees under this Indenture, nothing herein shall constitute the Trustees co-trustees of the same trust, and each Trustee shall be the

trustee of a trust separate and apart from any trust administered by any other Trustee with respect to a different series of Securities.

“ U.S. Government Obligations ” means (i) securities that are direct obligations of the United States of America, the payment of which is unconditionally guaranteed by the full faith and credit of the United States of America and (ii) securities that are obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed by the full faith and credit of the United States of America, and also includes depository receipts issued by a bank or trust company as custodian with respect to any of the securities described in the preceding clauses (i) and (ii), and any payment of interest or principal payable under any of the securities described in the preceding clauses (i) and (ii) that is held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt, or from any amount received by the custodian in respect of such securities, or from any specific payment of interest or principal payable under the securities evidenced by such depository receipt.

“ Vice President ”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

“ Voting Stock ”, as applied to the stock of any corporation, means stock of any class or classes (however designated), the outstanding shares of which have, by the terms thereof, ordinary voting power to elect a majority of the members of the board of directors (or other governing body) of such corporation, other than stock having such power only by reason of the happening of a contingency.

Section 1.02 . Officers’ Certificates and Opinions. Every Officers’ Certificate, Opinion of Counsel, and other certificate or opinion to be delivered to the Trustee under this Indenture with respect to any action to be taken by the Trustee (except for the Officers’ Certificate required by Section 10.04) shall include the following:

(a) a statement that each individual signing such certificate or opinion has read all covenants and conditions of this Indenture relating to such proposed action, including the definitions herein relating thereto;

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to

express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

Section 1.03 . Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to the other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, legal counsel, unless such officer knows that any such certificate, opinion, or representation is erroneous. Any opinion of counsel for the Company may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, unless such counsel knows that any such certificate, opinion, or representation is erroneous.

Where any Person is required to make, give, or execute two or more applications, requests, consents, certificates, statements, opinions, or other instruments under this Indenture, such instruments may, but need not, be consolidated and form a single instrument.

Section 1.04 . Acts of Securityholders. (a) Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Indenture to be given or taken by Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and (if expressly required by the applicable terms of this Indenture) to the Company. If any Securities are denominated in coin or currency other than that of the United States, then for the purposes of determining whether the Holders of the requisite principal amount of Securities have taken any action as herein described, the principal amount of such Securities shall be deemed to be that amount of United States dollars that could be obtained for such principal amount on the basis of the spot rate of exchange into United States dollars for the currency in which such Securities are denominated (as evidenced to the Trustee by a certificate provided by a financial institution, selected by the Company, that maintains an active trade in the currency in question, acting as conversion agent) as of the date the taking of such action by the Holders of such requisite principal amount is evidenced to the

Trustee as provided in the immediately preceding sentence. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Securityholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness to such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

(c) The ownership of Securities shall for all purposes be determined by reference to the Security Register, as such register shall exist as of the applicable date.

(d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, by Board Resolution, fix in advance a Record Date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such Record Date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after such Record Date, but only the Holders of record at the close of business on such Record Date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Securities Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Securities Outstanding shall be computed as of such Record Date; provided that no such authorization, agreement or consent by the Holders on such Record Date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after such Record Date.

(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind each subsequent Holder of such Security, and each Holder of any Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, with respect to anything done or suffered to be done by the Trustee or the Company in reliance upon such action, whether or not notation of such action is made upon such Security.

Section 1.05 . Notices, etc., to Trustee and Company. Any request, order, authorization, direction, consent, waiver, or other action to be taken by the Trustee, the Company, or the Securityholders hereunder (including any Authentication Order), and any notice to be given to the Trustee or the Company with respect to any action taken or to be taken by the Trustee, the Company, or the Securityholders hereunder, shall be sufficient if made in writing and

(a) (if to be furnished or delivered to or filed with the Trustee by the Company or any Securityholder) delivered to the Trustee (which may be by original or by facsimile) at its Corporate Trust Office, or

(b) (if to be furnished or delivered to the Company by the Trustee or any Securityholder, and except as otherwise provided in Section 5.01(d) and, in the case of a request for repayment, except as specified in the Security carrying the right to repayment) mailed to the Company, first-class postage prepaid, at its principal office (as specified in the first paragraph of this instrument), Attention: Treasurer, or at any other address hereafter furnished in writing by the Company to the Trustee.

Section 1.06 . Notice To Securityholders; Waiver. Where this Indenture or any Security provides for notice to Securityholders of any event, such notice shall be sufficiently given (unless otherwise expressly provided herein or in such Security) if in writing and mailed, first-class postage prepaid, to each Securityholder affected by such event, at his or her address as it appears in the Security Register as of the applicable Record Date, not later than the latest date or earlier than the earliest date prescribed by this Indenture or such Security for the giving of such notice. In any case where notice to Securityholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Securityholder shall affect the sufficiency of such notice with respect to other Securityholders. Where this Indenture or any Security provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Securityholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it shall be impractical to mail notice of any event to any Securityholder when such notice is required to be given pursuant to any provision of this Indenture or the applicable Security, then any method of notification as shall be satisfactory to the Trustee and the Company shall be deemed to be sufficient for the giving of such notice.

Section 1.07 . Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the TIA, such required provision shall control.

Section 1.08 . Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents hereof are for convenience only and shall not affect the construction of any provision of this Indenture.

Section 1.09 . Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

Section 1.10 . Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.11 . Benefits Of Indenture. Nothing in this Indenture or in any Securities, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder, the Authenticating Agent, the Security Registrar, any Paying Agent, and the Holders of Securities (or such of them as may be affected thereby), any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12 . Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of New York.

Section 1.13 . Counterparts. This instrument may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all of which shall together constitute but one and the same instrument.

Section 1.14 . Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court with respect to the Securities of any series it is necessary to convert the sum due in respect of the principal, premium, if any, or interest, if any, payable with respect to such Securities into a currency in which a judgment can be rendered (the “ Judgment Currency ”), the rate of exchange from the currency in which payments under such Securities is payable (the “ Required Currency ”) into the Judgment Currency shall be the highest bid quotation (assuming European-style quotation — i.e. , Required Currency per Judgment Currency) received by the Company from three recognized foreign exchange dealers in the City of New York for the purchase of the aggregate amount of the judgment (as denominated in the Judgment Currency) on the New York Business Day preceding the date on which a final unappealable judgment is rendered, for settlement on such payment date, and at which the applicable dealer timely commits to execute a contract, and (b) the Company’s obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or by any recovery pursuant to any judgment (whether or not entered in accordance with the preceding clause (a)), in any currency other than the Required Currency, except to the extent that such

tender or recovery shall result in the actual receipt by the judgment creditor of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.

Section 1.15 . Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Repayment Date or Maturity of any Security shall not be a New York Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Maturity, as the case may be.

Section 1.16. Exemption from Individual Liability . No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security or any coupon, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or any coupon or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or any coupon or implied, therefrom are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture and the issue of such Securities.

ARTICLE 2

S ECURITY F ORMS

Section 2.01 . Forms Generally. The Securities of each series shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

The definitive Securities, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

Section 2.02 . Forms of Securities. Each Security shall be in one of the forms approved from time to time by or pursuant to any Board Resolution, Officers’ Certificate or established in one or more indentures supplemental hereto. Prior to the delivery to the Trustee for authentication of any Security in any form approved by or pursuant to a Board Resolution, the Company shall deliver to the Trustee a copy of such Board Resolution, together with a true and correct copy of the form of Security which has been approved thereby, or, if a Board Resolution authorizes a specific officer or officers to approve a form of Security, together with a certificate of such officer or officers approving the form of Security attached thereto, provided, however , that with respect to all Securities issued pursuant to the same Board Resolution, the required copy of such Board Resolution, together with the appropriate attachment, need be delivered only once. Any form of Security approved by or pursuant to a Board Resolution must be acceptable as to form to the Trustee, such acceptance to be evidenced by the Trustee’s authentication of Securities in that form or by a certificate signed by a Responsible Officer of the Trustee and delivered to the Company.

Section 2.03 . Securities in Global Form. If Securities of a series are issuable in whole or in part in global form, the global security representing such Securities may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges or increased to reflect the issuance of additional Securities. Any endorsement of a Security in global form to reflect the amount (or any increase or decrease in the amount) of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Authentication Order delivered to the Trustee pursuant to Section 3.03 hereof.

Section 2.04 . Form of Trustee’s Certificate of Authentication. The form of Trustee’s Certificate of Authentication for any Security issued pursuant to this Indenture shall be substantially as follows:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.


U.S. Bank National Association, as Trustee,

By:
		Authorized Signatory

ARTICLE 3

T HE S ECURITIES

Section 3.01 . General Title; General Limitations; Issuable in Series; Terms of Particular Series. The aggregate principal amount of Securities that may be authenticated, delivered, and Outstanding at any time under this Indenture is not limited.

The Securities may be issued in one or more series in such aggregate principal amount as may from time to time be authorized by the Board of Directors. All Securities of a series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof, without preference, priority, or distinction on account of the actual time of the authentication and delivery or Scheduled Maturity Date thereof.

Each series of Securities shall be created either by or pursuant to one or more Board Resolutions, Officers’ Certificates or indentures supplemental hereto. Any such Board Resolution, Officers’ Certificate or supplemental indenture (or, in the case of a series of Securities created pursuant to a Board Resolution, any officer or officers authorized by such Board Resolution) shall establish the terms of any such series of Securities, including the following (as and to such extent as may be applicable):

(1) the title of such series;

(2) the limit, if any, upon the aggregate principal amount or issue price of the Securities of such series;

(3) the issue date or issue dates of the Securities of such series;

(4) the Scheduled Maturity Date of the Securities of such series;

(5) the place or places where the principal, premium, if any, interest, if any, and additional amounts, if any, payable with respect to the Securities of such series shall be payable;

(6) whether the Securities of such series will be issued at par or at a premium over or a discount from their face amount;

(7) the rate or rates (which may be fixed or variable) at which the Securities of such series shall bear interest, if any, and, if applicable, the method by which such rate or rates may be determined;

(8) the date or dates (or the method by which such date or dates may be determined) from which interest, if any, shall accrue, and the Interest Payment Dates on which such interest shall be payable;

(9) the rights, if any, to defer payments of interest on the Securities by extending the interest payment periods and the duration of such extension;

(10) the period or periods within which, the Redemption Price(s) or Repayment Price(s) at which, and any other terms and conditions upon which the Securities of such series may be redeemed or repaid, in whole or in part, by the Company;

(11) the obligation, if any, of the Company to redeem, repay, or purchase any of the Securities of such series pursuant to any sinking fund, mandatory redemption, purchase obligation, or analogous provision at the option of a Holder thereof, and the period or periods within which, the Redemption Price(s) or Repayment Price(s) or other price or prices at which, and any other terms and conditions upon which the Securities of such series shall be redeemed, repaid, or purchased, in whole or in part, pursuant to such obligation;

(12) whether the Securities of such series are to be issued in whole or in part in global form and, if so, the identity of the Depositary for such global security and the terms and conditions, if any, upon which interests in the Securities represented by such global security may be exchanged, in whole or in part, for the individual Securities represented thereby (if other than as provided in Section 3.05);

(13) the denominations in which the Securities of such series will be issued (which may be any denomination as set forth in the terms of such Securities) if other than U.S.$1,000 or an integral multiple thereof;

(14) whether and under what circumstances additional amounts on the Securities of such series shall be payable in respect of any taxes, assessments, or other governmental charges withheld or deducted and, if so, whether the

Company will have the option to redeem such Securities rather than pay such additional amounts;

(15) the basis upon which interest shall be calculated;

(16) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security for a definitive Security of such series) only upon receipt of certain certificates or other documents or upon satisfaction of other conditions, then the form and terms of such certificates, documents, and/or conditions;

(17) the exchange or conversion of the Securities of that series, whether or not at the option of the Holders thereof, for or into new Securities of a different series or for or into any other securities which may include shares of Capital Stock of the Company or any Subsidiary of the Company or securities directly or indirectly convertible into or exchangeable for any such shares or securities of entities unaffiliated with the Company or any Subsidiary of the Company;

(18) if other than U.S. dollars, the foreign or composite currency or currencies (each such currency a “ Specified Currency ”) in which the Securities of such series shall be denominated and in which payments of principal, premium, if any, interest, if any, or additional amounts, if any, payable with respect to such Securities shall or may be payable;

(19) if the principal, premium, if any, interest, if any, or additional amounts, if any, payable with respect to the Securities of such series are to be payable in any currency other than that in which the Securities are stated to be payable, whether at the election of the Company or of a Holder thereof, the period or periods within which, and the terms and conditions upon which, such election may be made;

(20) if the amount of any payment of principal, premium, if any, interest, if any, or other sum payable with respect to the Securities of such series may be determined by reference to the relative value of one or more Specified Currencies, commodities, securities, or instruments, the level of one or more financial or non- financial indices, or any other designated factors or formulas, the manner in which such amounts shall be determined;

(21) the exchange of Securities of such series, at the option of the Holders thereof, for other Securities of the same series of the same aggregate principal amount of a different authorized kind or different authorized denomination or denominations, or both;

(22) the appointment by the Trustee of an Authenticating Agent in one or more places other than the Corporate Trust Office of the Trustee, with power to act on behalf of the Trustee, and subject to its direction, in the authentication and delivery of the Securities of such series;

(23) any trustees, depositaries, paying agents, transfer agents, exchange agents, conversion agents, registrars, or other agents with respect to the Securities of such series if other than the Trustee, Paying Agent and Security Registrar named herein;

(24) the portion of the principal amount of Securities of such series, if other than the principal amount thereof, that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04;

(25) any Event of Default with respect to the Securities of such series, if not set forth herein, or any modification of any Event of Default set forth herein with respect to such series;

(26) any other covenant or warranty included for the benefit of the Securities of the series in addition to (and not inconsistent with) those set forth herein for the benefit of Securities of all series, or any other covenant or warranty included for the benefit of Securities of the series in lieu of any covenant or warranty set forth herein for the benefit of Securities of all series, or any provision that any covenant or warranty set forth herein for the benefit of Securities of all series shall not be for the benefit of Securities of such series, or any combination of such covenants, warranties or provisions;

(27) the inapplicability of Section 4.02 and Section 4.03 of this Indenture to the Securities of such series and if Section 4.03 is applicable, the covenants subject to Covenant Defeasance under Section 4.03; and

(28) any other terms not inconsistent with the provisions of this Indenture.

Except as otherwise permitted by Section 3.03, if all of the Securities of any such series are not to be issued at one time, the Company shall deliver an Authentication Order with respect to each subsequent issuance of Securities of such series, but such Authentication Orders may be executed by any authorized officer or officers of the Company, whether or not such officer or officers would have been authorized to establish such series pursuant to the aforementioned Board Resolution or Officers’ Certificate.

Unless otherwise provided by or pursuant to the Board Resolution or Officers’ Certificate or supplemental indenture creating such series (i) a series may be reopened for issuances of additional Securities of such series, and (ii) all Securities of the same series shall be substantially identical, except for the initial Interest Payment Date, issue price, initial interest accrual date and the amount of the first interest payment, provided that if the additional Securities are not fungible with the existing Securities for United States federal income tax purposes, the additional Securities will have a separate CUSIP number.

The form of the Securities of each series shall be established in a supplemental indenture or by or pursuant to the Board Resolution or Officers’ Certificate creating such series. The Securities of each series shall be distinguished from the Securities of each other series in such manner as the Board of Directors or its authorized representative or representatives may determine.

Unless otherwise provided with respect to Securities of a particular series, the Securities of any series may only be issuable in registered form, without coupons.

Section 3.02 . Denominations and Currency. The Securities of each series shall be issuable in such denominations and currency as shall be provided in the provisions of this Indenture or by or pursuant to the Board Resolution, Officers’ Certificate or supplemental indenture creating such series. In the absence of any such provisions with respect to the Securities of any series, the Securities of that series shall be issuable only in fully registered form in denominations of U.S. $1,000 and any integral multiple thereof.

Section 3.03 . Execution, Authentication and Delivery, and Dating. The Securities shall be executed on behalf of the Company by any two of the Chairman, Vice Chairman, Chief Financial Officer, Senior Vice President and any Vice President of the Company under its corporate seal, if any, reproduced thereon and attested by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted, or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.

Unless otherwise provided in the form of Security for any series, all Securities shall be dated the date of their authentication.

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities to the Trustee for authentication, together with a Company Order for authentication and delivery (such Order an “ Authentication Order ”) with respect to such Securities, and the Trustee shall, upon receipt of such Authentication Order, in accordance with procedures acceptable to the Trustee set forth in the Authentication Order, and subject to the provisions hereof, authenticate and deliver such Securities to such recipients as may be specified from time to time pursuant to such Authentication Order. The

material terms of such Securities shall be determinable by reference to such Authentication Order and procedures. If provided for in such procedures, such Authentication Order may authorize authentication and delivery of such Securities pursuant to oral instructions from the Company or its duly authorized agent, which instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to the provisions of Section 6.01 hereof) shall be fully protected in relying upon:

(1) an executed supplemental indenture, if any;

(2) an Officers’ Certificate, certifying as to the authorized form or forms and terms of such Securities; and

(3) an Opinion of Counsel, stating that:

(a) the form or forms and terms of such Securities have been established by and in conformity with the provisions of this Indenture; and

(b) such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, moratorium, reorganization, and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general principles of equity;

After the original issuance of the first such Security to be issued, any separate request by the Company that the Trustee authenticate such Securities for original issuance will be deemed to be a certification by the Company that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities.

The Trustee shall not be required to authenticate such Securities if the issue thereof will adversely affect the Trustee’s own rights, duties, or immunities under the Securities and this Indenture.

If the Company shall establish pursuant to Section 3.01 that Securities of a series may be issued in whole or in part in global form, then the Company shall execute, and the Trustee shall (in accordance with this Section 3.03 and the Authentication Order with respect to such series) authenticate and deliver, one or more Securities in global form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such one or more Securities in global form, (ii) shall be registered, in the name of the Depositary for such Security or Securities in global form, or in the name of a nominee of such

Depositary, (iii) shall be delivered to such Depositary or pursuant to such Depositary’s instruction, and (iv) shall bear a legend substantially as follows: “Unless and until it is exchanged in whole or in part for Securities in certificated form, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, or by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.” Each Depositary designated pursuant to Section 3.01 for a Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

Section 3.04 . Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and, upon receipt of the documents required by Sections 2.02, 3.01 and 3.03 hereof, together with an Authentication Order, the Trustee shall authenticate and deliver, temporary Securities of such series that are printed, lithographed, typewritten, mimeographed, or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued in registered form, without coupons, and with such appropriate insertions, omissions, substitutions, and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series for which a temporary Security may be issued in global form, such temporary global security shall represent all of the Outstanding Securities of such series and tenor.

Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities of such series shall be exchangeable, at the Corporate Trust Office of the Trustee, or at such other office or agency as may be maintained by the Company in a Place of Payment pursuant to Section 10.02 hereof, for definitive Securities of such series having identical terms and provisions, upon surrender of the temporary Securities of such series, at the Company’s own expense and without charge to the Holder; and upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of such series in authorized denominations containing identical terms and provisions. Unless

otherwise specified as contemplated by Section 3.01 with respect to a temporary Security in global form, until so exchanged, the temporary Securities of such series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

Section 3.05 . Registration, Transfer and Exchange. With respect to the Securities of each series, the Trustee shall keep a register (herein sometimes referred to as the “ Security Register ”) which shall provide for the registration of Securities of such series, and for transfers of Securities of such series, in accordance with information to be provided to the Trustee by the Company, subject to such reasonable regulations as the Trustee may prescribe. Such register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers shall be available for inspection at the Corporate Trust Office of the Trustee or at such other office or agency to be maintained by the Company pursuant to Section 10.02 hereof.

Upon due presentation for registration of transfer of any Security of any series at the Corporate Trust Office of the Trustee or at any other office or agency maintained by the Company with respect to that series pursuant to Section 10.02 hereof, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of such series of any authorized denominations, of like aggregate principal amount, tenor, terms and Scheduled Maturity Date.

Any other provision of this Section 3.05 notwithstanding, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, in definitive form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of such Depositary, or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

At the option of the Holder, Securities of any series may be exchanged for other Securities of such series of any authorized denominations, of like aggregate principal amount, tenor, terms and Scheduled Maturity Date, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Securityholder making the exchange is entitled to receive.

If at any time the Depositary for the Securities of a series represented by one or more Securities in global form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series, or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 3.03 hereof, the Company, by Company Order, shall appoint a successor

Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.01 that such Securities be represented by one or more Securities in global form shall no longer be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form, in authorized denominations, in an aggregate principal amount, and of like terms and tenor, equal to the principal amount of the Security or Securities in global form representing such series, in exchange for such Security or Securities in global form.

The Company may at any time and in its sole discretion and subject to the procedures of the Depositary determine that individual Securities of any series issued in global form shall no longer be represented by such Security or Securities in global form. In such event the Company will execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery of definitive Securities of such series and of the same terms and tenor, will authenticate and deliver Securities of such series in definitive form, in authorized denominations, and in aggregate principal amount equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.

If specified by the Company pursuant to Section 3.01 with respect to a series of Securities issued in global form, the Depositary for such series of Securities may surrender a Security in global form for such series of Securities in exchange in whole or in part for Securities of such series in definitive form and of like terms and tenor on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt of an Authentication Order for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver, without service charge:

(a) to each Person specified by such Depositary, a new definitive Security or Securities of the same series and of the same tenor and terms, in authorized denominations, in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and

(b) to such Depositary, a new Security in global form in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of the definitive Securities delivered to Holders pursuant to clause (a) above.

Upon the exchange of a Security in global form for Securities in definitive form, such Security in global form shall be canceled by the Trustee or an agent of the Company or the Trustee. Securities issued in definitive form in exchange for a Security in global form pursuant to this Section 3.05 shall be registered in such

names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee in writing. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered or to the Depositary.

Whenever any securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.

Every Security presented or surrendered for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

Unless otherwise provided in the Security to be transferred or exchanged, no service charge shall be imposed for any registration of transfer or exchange of Securities, but the Company may (unless otherwise provided in such Security) require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 3.06, 9.06 and 11.07 hereof not involving any transfer.

The Company shall not be required to (i) issue, register the transfer of, or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the date of such mailing, or (ii) register the transfer of or exchange any Security so selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.

Section 3.06 . Mutilated, Destroyed, Lost and Stolen Securities. If (i) any mutilated Security is surrendered to the Trustee, or the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company may in its discretion execute and upon request of the Company the Trustee shall authenticate and deliver, in

exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of like tenor, terms, series, Scheduled Maturity Date, and principal amount, bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

Section 3.07 . Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable and is punctually paid or duly provided for on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the applicable Record Date, notwithstanding any transfer or exchange of such Security subsequent to such Record Date and prior to such Interest Payment Date (unless such Interest Payment Date is also the date of Maturity of such Security).

Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the registered Holder on the applicable Record Date by virtue of his having been such Holder; and, except as hereinafter provided, such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or clause (b) below:

(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names any such Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date (herein called “ Special Record Date ”) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the

Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of each such Security at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Interest on Securities of any series that bear interest may be paid by mailing a check to the address of the Person entitled thereto at such address as shall appear in the Securities Register for such series or by such other means as may be specified in the form of such Security.

Subject to the foregoing provisions of this Section 3.07 and the provisions of Section 3.05 hereof, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

Section 3.08 . Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee, and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered on the applicable Record Date(s) as the owner of such Security for the purpose of receiving payment of principal, premium, if any, interest, if any (subject to Sections 3.05 and 3.07 hereof), and any additional amounts payable with respect to such Security, and for all other purposes whatsoever, whether or

not such Security be overdue, and neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

None of the Company, the Trustee, any Authenticating Agent, any Paying Agent, the Security Registrar, or any Co-Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and each of them may act or refrain from acting without liability on any information relating to such records provided by the Depositary.

Section 3.09 . Cancellation. All Securities surrendered for payment, redemption, registration of transfer, exchange, or credit against a sinking or analogous fund shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already canceled, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. Acquisition of such Securities by the Company shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. No Security shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities in accordance with its customary procedures and deliver a certificate of such disposition to the Company, unless, by a Company Order, the Company shall direct that the cancelled Securities be returned to it.

Section 3.10 . Computation of Interest. Unless otherwise provided as contemplated in Section 3.01, interest on the Securities shall be calculated on the basis of a 360-day year of twelve 30-day months.

ARTICLE 4

S ATISFACTION AND D ISCHARGE

Section 4.01 . Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect with respect to any series of Securities (except as to any surviving rights of conversion or transfer or exchange of Securities of such series expressly provided for herein or in the form of Security for such series), and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

(a) either

(i) all Securities of that series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.06, and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.07) have been delivered to the Trustee canceled or for cancellation; or

(ii) all such Securities of that series not theretofore delivered to the Trustee canceled or for cancellation

(A) have become due and payable, or

(B) will, in accordance with their Scheduled Maturity Date, become due and payable within one year, or

(C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and, in any of the cases described in subparagraphs (A), (B), or (C) above, the Company has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust for the purpose, (x) an amount in money sufficient, (y) U.S. Government Obligations or Equivalent Government Securities which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money sufficient, or (z) a combination of (x) and (y) sufficient, in the opinion with respect to (y) and (z) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on such Securities with respect to principal, premium, if any, and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable), or to the Scheduled Maturity Date or Redemption Date, as the case may be; provided, however , that if such U.S. Government Obligations or Equivalent Government Securities are callable or redeemable at the option of the issuer thereof, the amount of such money, U.S. Government Obligations, and Equivalent Government Securities deposited with the Trustee must be sufficient to pay and discharge the entire indebtedness referred to above if such issuer elects to exercise such call or redemption provisions at any time prior to the Scheduled Maturity Date or Redemption Date, as the case may be. The Company, but not the Trustee, shall be responsible for monitoring any such call or redemption provision; and

(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such series; and

(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company under paragraph (a) of this Section 4.01 and all of the Company’s obligations to make payments to, indemnify or reimburse the Trustee with respect to that series of Securities, including, without limitation, under Section 4.05 and Section 6.07 shall survive, and the obligations of the Trustee under Sections 4.05, 4.07 and 10.03 shall survive.

Section 4.02. Discharge and Defeasance.

The provisions of this Section and Section 4.04 (insofar as relating to this Section) shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto provided pursuant to Section 3.01. In addition to discharge of this Indenture pursuant to Section 4.01, in the case of any series of Securities with respect to which the exact amount described in subparagraph (a) of Section 4.04 can be determined at the time of making the deposit referred to in such subparagraph (a), the Company shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series as provided in this Section on and after the date the conditions set forth in Section 4.04 are satisfied, and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series, (ii) substitution of mutilated, destroyed, lost or stolen Securities of such series, (iii) rights of Holders of Securities of such series to receive, solely from the trust fund described in subparagraph (a) of Section 4.04, payments of principal thereof, premium, if any, and interest, if any, thereon upon the original stated due dates or upon the Redemption Dates therefor (but not upon acceleration), and remaining rights of the Holders of Securities of such series to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) this Section 4.02, Section 4.07, Section 10.02 and Section 10.03 and (vi) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them) (hereinafter called “ Defeasance ”), and the Trustee at the cost and expense of the Company, shall execute proper instruments acknowledging the same.

Section 4.03 . Covenant Defeasance.

The provisions of this Section and Section 4.04 (insofar as relating to this Section) shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto provided pursuant to Section 3.01. In the case of any series of Securities with respect to which the exact amount described in subparagraph (a) of Section 4.04 can be determined at the time of making the deposit referred to in such subparagraph (a), (i) the Company shall be released from its obligations under any covenants specified in or pursuant to Section 3.01 as being subject to Covenant Defeasance with respect to such series (except as to (a) rights of registration of transfer and exchange of Securities of such series and rights under Section 4.07, Section 10.02 and Section 10.03, (b) substitution of mutilated, destroyed, lost or stolen Securities of such series, (c) rights of Holders of Securities of such series to receive, from the Company pursuant to Section 10.01, payments of principal thereof and interest, if any, thereon upon the original stated due dates or upon the Redemption Dates therefor (but not upon acceleration), and remaining rights of the Holders of Securities of such series to receive mandatory sinking fund payments, if any, (d) the rights, obligations, duties and immunities of the Trustee hereunder and (e) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and (ii) the occurrence of any of the events specified in Section 5.01(d) (with respect to any of the covenants specified in or pursuant to Section 3.01 as being subject to Covenant Defeasance with respect to such series), Section 5.01(f) or Section 5.01(i) shall be deemed not to be or result in a default or an Event of Default, in each case with respect to the Outstanding Securities of such series as provided in this Section on and after the date the conditions set forth in Section 4.04 are satisfied (hereinafter called “ Covenant Defeasance ”), and the Trustee at the cost and expense of the Company, shall execute proper instruments acknowledging the same. For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby.

Section 4.04. Conditions To Defeasance Or Covenant Defeasance.

The following shall be the conditions to application of either Section 4.02 or Section 4.03 to the Outstanding Securities:

(a) with reference to Section 4.02 or Section 4.03, the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Securities of such series (i) money in an amount, or (ii) U.S. Government Obligations or Equivalent Government Securities which through the payment of interest and principal in respect thereof in accordance

with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments) of, premium, if any, and interest on, the Outstanding Securities of such series on the dates such installments of interest, premium or principal are due, including upon redemption; provided, however , that if such U.S. Government Obligations and Equivalent Government Securities are callable or redeemable at the option of the issuer thereof, the amount of such money, U.S. Government Obligations, and/or Equivalent Government Securities deposited with the Trustee must be sufficient to pay and discharge the entire indebtedness referred to above if the issuer of any such U.S. Government Obligations or Equivalent Government Securities elects to exercise such call or redemption provisions at any time prior to the Scheduled Maturity Date or Redemption Date of such Securities, as the case may be. The Company, but not the Trustee, shall be responsible for monitoring any such call or redemption provision.

(b) in the case of Defeasance under Section 4.02, the Company has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, Defeasance and discharge had not occurred;

(c) in the case of Covenant Defeasance under Section 4.03, the Company has delivered to the Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and Covenant Defeasance had not occurred;

(d) no Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit, after giving effect to such deposit or, in the case of a Defeasance under Section 4.02, no Event of Default specified in Section 5.01(g) or Section 5.01(h) shall have occurred, at any time during the period ending on the 91st day after the date of such deposit or if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);

(e) such Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting interest within the meaning of the TIA, assuming all Securities of a series were in default within the meaning of the TIA;

(f) such Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Company is a party or by which it is bound;

(g) such Defeasance or Covenant Defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration;

(h) If the Securities of such series are to be redeemed prior to their Stated Maturity Date (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;

(i) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for herein relating to such Defeasance or Covenant Defeasance, as the case may be, have been complied with; and

(j) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit made by the Company pursuant to Sections 4.02, 4.03 or 4.04 hereof was not made by the Company with the intent of preferring the Holders of the Securities over any of its other creditors or with the intent of defeating, hindering, delaying or defrauding any of its other creditors or others.

Section 4.05 . Application of Trust Money; Excess Funds. All money and U.S. Government Obligations or Equivalent Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.01 or Section 4.04 hereof shall be held in trust and applied by it, in accordance with the provisions of this Indenture and of the series of Securities in respect of which it was deposited, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations or Equivalent Government Securities deposited pursuant to Section 4.01 or Section 4.04 hereof or the principal and interest received in respect thereof

other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities.

Anything in this Article 4 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Governmental Obligations or Equivalent Government Securities held by it as provided in Section 4.01 or Section 4.04 which, in the opinion of a nationally recognized investment bank, appraisal firm or firm of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, (which may be the opinion delivered under Section 4.01 or Section 4.04, as applicable), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent satisfaction and discharge, Covenant Defeasance or Defeasance of the applicable series.

Section 4.06 . Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent of the Securities (other than the Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.

Section 4.07 . Return of Unclaimed Amounts. Any amounts deposited with or paid to the Trustee or any Paying Agent or then held by the Company, in trust for payment of the principal of, premium, if any, or interest, if any, on the Securities and not applied but remaining unclaimed by the Holders of such Securities for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on Company Request or (if then held by the Company) shall be discharged from such trust; and the Holder of any of such Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect (until such time as such unclaimed amounts shall escheat, if at all, to the State of New York) and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. Notwithstanding the foregoing, the Trustee or Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once a week for two successive weeks (in each case on any day of the week) in a newspaper printed in the English language and customarily published at least once a day at least five days in each calendar week and of general circulation in the Borough of Manhattan, in the City and State of New York, a notice that said amounts have not been so applied and that after a date named therein any unclaimed balance of said amounts then remaining will be promptly returned to the Company.

A RTICLE 5

R EMEDIES

Section 5.01 . Events of Default. “ Event of Default ”, wherever used herein, means with respect to any series of Securities any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is either inapplicable to a particular series or it is specifically deleted or modified in the manner contemplated by Section 3.01:

(a) default in the payment of any interest on any Security of such series when it becomes due and payable, and continuance of such default for a period of 30 days; or

(b) default in the payment of the principal amount of (or premium, if any, on) any Security of such series as and when the same shall become due, either at Maturity, upon redemption, by declaration, or otherwise; or

(c) default in the payment of any sinking or purchase fund or analogous obligation when the same becomes due by the terms of the Securities of such series and continuance of such default for a period of 30 days; or

(d) default in the performance or breach of any covenant or warranty of the Company or any guarantor, if applicable, in this Indenture in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in the performance of which or the breach of which is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days or more after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in the principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder; or

(e) default under any agreement or instrument evidencing, or under which the Company or any Restricted Subsidiary has outstanding at the time, any indebtedness for money borrowed by the Company or any Restricted Subsidiary (including a default with respect to Securities of any series other than such series), whether such indebtedness now exists or shall hereafter be created, and which results in such indebtedness in an outstanding principal amount in excess of $100.0 million becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; or

(f) the cessation of any guarantee with respect to the Securities of such series for any reason to be, or the assertion by the Company or the guarantor that

such guarantee ceases to be, in full force and effect and enforceable, except, in each case, as provided for in the Indenture or by such guarantee; or

(g) the entry of an order for relief against the Company under the Federal Bankruptcy Act by a court having jurisdiction in the premises or a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent under any other applicable Federal or State law, or the entry of a decree or order approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the Federal Bankruptcy Code or any other applicable Federal or State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

(h) the consent by the Company to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or

(i) any other Event of Default provided for with respect to the Securities of such series in accordance with Section 3.01.

Except as described above, a default under any indebtedness of the Company other than the Securities will not constitute an Event of Default under this Indenture, and a default under one series of Securities will not constitute a default under any other series of Securities.

Section 5.02 . Acceleration of Maturity; Rescission, and Annulment. If any Event of Default described in Section 5.01 above (other than Event of Default described in Section 5.01(g) and Section 5.01(h)) shall have occurred and be continuing with respect to any series, then and in each and every such case, unless the principal of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the Securities of such series and any and all accrued interest thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, any

provision of this Indenture or the Securities of such series to the contrary notwithstanding. If an Event of Default specified in Section 5.01(g) or Section 5.01(h) occurs, the principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of the Securities of such series and any and all accrued interest thereon shall immediately become and be due and payable without any declaration or other act on the party of the Trustee or any Holder. No declaration of acceleration by the Trustee with respect to any series of Securities shall constitute a declaration of acceleration by the Trustee with respect to any other series of Securities, and no declaration of acceleration by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of any series shall constitute a declaration of acceleration or other action by any of the Holders of any other series of Securities, in each case whether or not the Event of Default on which such declaration is based shall have occurred and be continuing with respect to more than one series of Securities, and whether or not any Holders of the Securities of any such affected series shall also be Holders of Securities of any other such affected series.

At any time after such a declaration of acceleration has been made with respect to the Securities of any series and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with respect to such series of Securities, other than the nonpayment of the principal and interest of the Securities of such series which have become due solely by such acceleration, have been cured or waived as provided in Section 5.13, if such cure or waiver does not conflict with any judgment or decree set forth in Section 5.01(g) and Section 5.01(h) and if all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel have been paid.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee . The Company covenants that if:

(a) default is made in the payment of any installment of interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days, or

(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

then, with respect to the Securities of such series, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder of any such Security, the whole amount then due and payable on any such Security for principal (and premium, if any) and interest, if any, with interest (to the extent that payment of such interest shall be legally enforceable) upon the overdue principal (and premium, if any) and upon overdue installments of interest, if any, at such rate or rates as may be prescribed therefor by the terms of any such Security; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.07.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the money adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

If an Event of Default with respect to any series of Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

Section 5.04 . Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition, or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,

(a) to file and prove a claim for the whole amount of principal (or, with respect to Original Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities), premium, if any, and interest, if any, owing and unpaid in respect of the Securities, and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel, and all other

amounts due the Trustee under Section 6.07) and of the Securityholders allowed in such judicial proceedings, and

(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Securityholder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and its agent and counsel, and any other amounts due the Trustee under Section 6.07 hereof.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.

Section 5.05 . Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities of any series may be prosecuted and enforced by the Trustee without the possession of any of the Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, be for the ratable benefit of the Holders of the Securities, of the series in respect of which such judgment has been recovered.

Section 5.06 . Application of Money Collected. Subject to the terms of the Intercreditor Agreement, any money collected by the Trustee with respect to a series of Securities pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, if any, upon presentation of the Securities of such series and the notation thereon of the payment, if only partially paid, and upon surrender thereof, if fully paid:

First: To the payment of all amounts due the Trustee under Section 6.07 hereof.

Second: To the payment of the amounts then due and unpaid upon the Securities of that series for principal, premium, if any, interest, if any, and additional amounts, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind.

Third: The balance, if any, to the Company.

Section 5.07 . Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to Securities of such series;

(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(d) the Trustee for 60 days after its receipt of such notice, request, and offer of indemnity has failed to institute any such proceeding; and

(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such series; it being understood and intended that no one or more Holders of Securities of such series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of such series, or to obtain or to seek to obtain priority or preference over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate benefit of all the Holders of all Securities of such series.

Section 5.08 . Unconditional Right of Securityholders to Receive Principal, Premium, and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal, premium, if any, and (subject to Section 3.07) interest, if any, (and additional amounts, if any) on such Security on or after the respective payment dates expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date or Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment on or after such respective date, and such right shall not be impaired or affected without the consent of such Holder.

Section 5.09 . Restoration of Rights and Remedies. If the Trustee or any Securityholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Company, the Trustee and the Securityholders shall, subject to any determination in such proceeding, be restored

severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Securityholders shall continue as though no such proceeding had been instituted.

Section 5.10 . Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right or remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 5.11 . Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Securityholders, as the case may be.

Section 5.12 . Control by Securityholders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that

(a) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer, determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders not taking part in such direction, and

(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

Section 5.13 . Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may, on behalf of the Holders of all the Securities of such series, waive any past default hereunder with respect to such series and its consequences, except a default not theretofore cured:

(a) in the payment of principal, premium, if any, or interest, if any, on any Security of such series, or in the payment of any sinking or purchase fund or analogous obligation with respect to the Securities of such series, or

(b) in respect of a covenant or provision in this Indenture which, under Article Nine hereof, cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

Section 5.14 . Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series to which the suit relates, or to any suit instituted by any Securityholder for the enforcement of the payment of principal, premium, if any, or interest, if any, on any Security on or after the respective payment dates expressed in such Security (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date).

Section 5.15 . Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law (other than any bankruptcy law) wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

A RTICLE 6

T HE T RUSTEE

Section 6.01 . Certain Duties and Responsibilities of Trustee. (a) Except during the continuance of an Event of Default with respect to any series of Securities,

(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.

(b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise, with respect to the Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;

(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, including any determination to take or refrain from taking any action under the Intercreditor Agreement, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Outstanding Securities of any series relating to the time, method, and place of conducting any proceeding for any remedy available to the Trustee with respect to the Securities of such series, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. In addition, every provision of this Article 6 relating to the conduct or affecting the liability of or affording protection to the Trustee shall apply to any actions or inactions of the Trustee in respect of the Intercreditor Agreement.

(e) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of god, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services resulting from such forces; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 6.02 . Notice of Defaults. Within 90 days after receiving notice of the occurrence of any default hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all Securityholders of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however , that, except in the case of a default in the payment of the principal, premium, if any, or interest, if any, on any Security of such series or in the payment of any sinking or purchase fund installment or analogous obligation with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Securityholders of such series and; provided, further , that, in the case of any default of the character specified in Section 5.01(d) with respect to Securities of such series, no such notice to Securityholders of such series shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default”, with respect to Securities of any series, means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

Section 6.03 . Certain Rights of Trustee. Except as otherwise provided in Section 6.01 above:

(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) any request, direction or order of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

(d) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Securityholders pursuant to this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, other than any such books or records containing information as to the affairs of the customer of the Company or any of its subsidiaries;

(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(h) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Trustee at the Corporate Trust Office, and such notice references the Notes and this Indenture;

(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee

has been advised of the likelihood of such loss or damage and regardless of the form of action; and

(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

Section 6.04 . Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

Section 6.05 . May Hold Securities. The Trustee or any Paying Agent, Security Registrar, or other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13 hereof, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, or such other agent.

Section 6.06 . Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

Section 6.07. Compensation and Reimbursement . The Company covenants and agrees

(a) to pay the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder which shall have been separately agreed to from time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(b) except as otherwise expressly provided herein , to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust,

including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(g) and Section 5.01(h) above, such expenses (including the reasonable charges and expenses of its counsel) and compensation for such services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency, reorganization, or other similar law.

The Trustee shall have a lien prior to the Securities upon all property and funds held or collected by it as such for any amount owing to it or any predecessor Trustee pursuant to this Section 6.07, except with respect to funds held in trust for the benefit of the Holders of particular Securities.

The provisions of this Section shall survive the satisfaction and discharge of this Indenture.

Section 6.08 . Disqualification; Conflicting Interests. If the Trustee has or shall acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate such interest or resign as Trustee with respect to one or more series of Securities, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

Section 6.09 . Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder with respect to each series of Securities that shall be a corporation organized and doing business under the laws of the United States of America or of any State or Territory thereof or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to any series of Securities shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 6.10 . Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor

Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.

(b) The Trustee may resign with respect to any one or more series of Securities at any time by giving at least 60 days’ written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(c) The Trustee may be removed with respect to any series of Securities at any time by Act of the Holders of 66 ² / 3 % in principal amount of the Outstanding Securities of that series, delivered to the Trustee and to the Company.

(d) If at any time:

(i) the Trustee shall fail to comply with Section 6.08 above with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security of that series for at least 6 months, or

(ii) the Trustee shall cease to be eligible under Section 6.09 above with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or

(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or

(iv) the Trustee shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case (A) the Company may remove the Trustee, with respect to the series or, in the case of clause (iv), with respect to all series, or (B) subject to Section 5.14, any Securityholder who has been a bona fide Holder of a Security of such series for at least 6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the series or, in the case of clause (iv), with respect to all series.

(e) The Company may remove the Trustee if the Company shall determine that the services provided by the Trustee hereunder may be obtained at substantially lower cost to the Company.

(f) If the Trustee shall resign, be removed or become incapable of acting with respect to any series of Securities, or if a vacancy shall occur in the office of Trustee with respect to any series of Securities for any cause, the Company shall promptly appoint a successor Trustee for that series of Securities. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to such series of Securities shall be appointed by Act of the Holders of 66 ² / 3 % in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to such series and supersede the successor Trustee appointed by the Company with respect to such series. If no successor Trustee with respect to such series shall have been so appointed by the Company or the Securityholders of such series and accepted appointment in the manner hereinafter provided, any Securityholder who has been bona fide Holder of a Security of that series for at least 6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.

(g) The Company shall give notice of each resignation and each removal of the Trustee with respect to any series and each appointment of a successor Trustee with respect to any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities of that series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee and the address of its principal Corporate Trust Office.

Section 6.11 . Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder with respect to all series of Securities shall execute, acknowledge and deliver to the Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor Trustee shall become effective, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the predecessor Trustee with respect to any such series; but, on request of the Company or the successor Trustee, such predecessor Trustee shall, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the predecessor Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such predecessor Trustee hereunder.

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which (1) shall contain such provisions as shall be deemed necessary or desirable to transfer and to conform to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities

of any series as to which the appointment of such successor Trustee relates and (2) if the predecessor Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not being succeeded shall continue to be vested in the predecessor Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; and, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

No successor Trustee with respect to any series of Securities shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible with respect to that series under this Article.

Section 6.12 . Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor Trustee by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

Section 6.13 . Preferential Collection of Claims Against Company. If and when the Trustee shall be or shall become a creditor, of the Company (or of any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or against any such other obligor, as the case may be).

Section 6.14 . Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding the Trustee, may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be reasonably acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Company itself, subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and, if other than the Company, to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and, if other than the Company, to the Company. Upon receiving such a notice of resignation or upon

such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee, with the approval of the Company, may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.


The U.S. Bank National Association, as Trustee

By:
		As Authenticating Agent



By:
		Authorized Signatory

ARTICLE 7

S ECURITYHOLDERS ’ L ISTS AND R EPORTS BY T RUSTEE AND C OMPANY

Section 7.01. Company to Furnish Trustee Names and Addresses of Securityholders. The Company will furnish or cause to be furnished to the Trustee:

(a) semiannually, not more than 15 days after January 1 and July 1 in each year, in such form as the Trustee may reasonably require, a list of the names and addresses of the Holders of Securities of each series as of such date, and

(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is

furnished, provided that if the Trustee shall be the Security Registrar for such series, such lists shall not be required to be furnished.

Section 7.02 . Preservation of Information; Communications to Securityholders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

(b) If three or more Holders of Securities of any series (hereinafter referred to as “ applicants ”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series or with the Holders of all Securities with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either:

(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a), or

(ii) inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.

If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of a Security of such series or to all Securityholders, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securityholders, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the

written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all Securityholders of such series or all Securityholders, as the case may be, with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).

Section 7.03 . Reports by Trustee. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, which complies with the provisions of such Section 313(a).

(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company as required by Trust Indenture Act Section 313(d). The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.

Section 7.04. Reports by Company . The Company will:

(a) file with the Trustee, within 15 days after the Company is required to file the same with the Commission (after giving effect to any applicable grace period as set forth in Rule 12b-25 under the Securities Exchange Act of 1934), copies of the annual and quarterly reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be

required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

(b) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

(c) transmit by mail to all Securityholders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

ARTICLE 8

C ONSOLIDATION , M ERGER , C ONVEYANCE OR T RANSFER

Section 8.01 . Company May Consolidate, etc., Only on Certain Terms. Neither the Company nor any guarantor shall consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties and assets to any Person, unless;

(a) either the Company or such guarantor, as the case may be, shall be the continuing corporation, or the corporation formed by such consolidation or into which the Company or such guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer all or substantially all of the properties and assets of the Company or such guarantor, as the case may be, shall be a corporation organized and existing under the laws of the United States of America or any State or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal, premium, if any, and interest, if any, on all the Securities or guarantees of the Securities, as the case may be, and the performance of every covenant of this Indenture on the part of the Company, or such guarantor, as the case may be, to be performed or observed;

(b) immediately after giving effect to such transaction, no Event of Default, or event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; and

(c) the Company has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any such consolidation, merger, conveyance or transfer and any assumption permitted or required by this Article complies with the provisions of this Article.

Section 8.02 . Successor Corporation Substituted. Upon any consolidation or merger, or any conveyance or transfer of all or substantially all of the properties and assets of the Company or any guarantor in accordance with Section 8.01, the successor corporation formed by such consolidation or into which the Company or such guarantor, as the case may be, is merged or the Person to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such guarantor, as the case may be, under this Indenture with the same effect as if such successor corporation had been named as the Company or such guarantor, as the case may be, herein and the Company or such guarantor, as the case may be, shall thereupon be released from all obligations hereunder and under the Securities or guarantee of the Securities. Such successor corporation thereupon may cause to be signed and may issue any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities and guarantees of Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities or guarantees of Debt Securities had been issued at the date of the execution hereof.

In case of any such consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.

ARTICLE 9

S UPPLEMENTAL I NDENTURES

Section 9.01 . Supplemental Indentures Without Consent of Securityholders. Without the consent of the Holders of any Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of execution thereof), in form satisfactory to the Trustee, for any of the following purposes:

(a) to evidence the succession of another corporation to the Company or any guarantor, or successive successions, and the assumption by any such successor of the covenants, agreements and obligations of the Company or such guarantor, as the case may be, pursuant to Article 8 hereof; or

(b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of the Securities of any or all series as the Company and the Trustee shall consider to be for the protection of the Holders of the Securities of any or all series or to surrender any right or power herein conferred upon the Company (and if such covenants or the surrender of such right or power are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of one or more specified series); or

(c) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under this Indenture that do not adversely affect the interests of the Holders of Securities of any series in any material respect; or

(d) to add to this Indenture such provisions as may be expressly permitted by the TIA, excluding, however, the provisions referred to in Section 316(a)(2) of the TIA as in effect at the date as of which this instrument is executed or any corresponding provision in any similar federal statute hereafter enacted; or

(e) to evidence the addition of any Subsidiary of the Company as a guarantor or the release of any guarantor and its obligations pursuant to this Indenture; or

(f) to secure any series of Securities; or

(g) to establish any form of Security, as provided in Article 2 hereof, and to provide for the issuance of any series of Securities, as provided in Article 3 hereof, and to set forth the terms thereof, and/or to add to the rights of the Holders of the Securities of any series; or

(h) to evidence and provide for the acceptance of appointment by another corporation as a successor Trustee hereunder with respect to one or more series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to Section 6.11 hereof; or

(i) to add any additional Events of Default in respect of the Securities of any or all series (and if such additional Events of Default are to be in respect of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of one or more specified series); or

(j) to comply with the requirements of the Commission in connection with the qualification of this Indenture under the TIA; or

(k) to make any change in any series of Securities or to add to this Indenture such provisions that do not adversely affect in any material respect the interests of the Holders of such Securities.

Section 9.02 . Supplemental Indentures With Consent of Securityholders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture or indentures, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series under this Indenture; provided, however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:

(a) change the Scheduled Maturity Date or the stated payment date of any payment of premium or interest payable on any Security, or reduce the principal amount thereof, or any amount of interest or premium payable thereon; or

(b) change the method of computing the amount of principal of any Security or any interest payable thereon on any date, or change any Place of Payment where, or the coin or currency in which, any Security or any payment of premium or interest thereon is payable; or

(c) impair the right to institute suit for the enforcement of any payment described in clauses (a) or (b) on or after the same shall become due and payable, whether at Maturity or, in the case of redemption or repayment, on or after the Redemption Date or the Repayment Date, as the case may be; or

(d) change or waive the redemption or repayment provisions of any series; or

(e) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences, provided for in this Indenture; or

(f) modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however , that

this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.07, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(h); or

(g) reduce any of the provisions of the Indenture regarding quorum or voting; or

(h) adversely affect the right to repayment, if any, of Securities of any series at the option of the Holders thereof; or

(i) except for releases in compliance with the terms of this Indenture, amend or modify the terms of any of the guarantee provisions of this Indenture in a manner adverse to the Holders; or

(j) release any guarantor or co-obligor from any of its obligations under its guarantee of the Securities or this Indenture, except in compliance with the terms of this Indenture; or

(k) waive any Event of Default pursuant to Section 5.01(a), Section 5.01(b) or Section 5.01(c) hereof with respect to such Security.

A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 9.03 . Execution of Supplemental Indentures. Upon request of the Company and upon filing with the Trustee of evidence of an Act of Securityholders as aforementioned, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, powers, trusts, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.

Section 9.04 . Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be and be deemed to be modified and amended in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and the respective rights, limitation of rights, duties, powers, trusts and immunities under this Indenture of the Trustee, the Company, and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be determined, exercised and enforced thereunder to the extent provided therein.

Section 9.05 . Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect.

Section 9.06 . Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.

ARTICLE 10

C OVENANTS

Section 10.01 . Payment of Principal, Premium and Interest. With respect to each series of Securities, the Company will duly and punctually pay or cause to be paid the principal, premium, if any, and interest, if any, on such Securities in accordance with their terms and this Indenture, and will duly comply with all the other terms, agreements and conditions contained in the Indenture for the benefit of the Securities of such series.

Section 10.02 . Maintenance of Office or Agency. So long as any of the Securities remain outstanding, the Company will maintain an office or agency in each Place of Payment where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and of any change in the location, of such office or agency. If at any time the Company shall fail to maintain such office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all such presentations, surrenders, notices and demands.

Section 10.03 . Money or Security Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent for any series of Securities, it will, on or before each due date of the principal, premium, if any, or interest, if any, on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal, premium, or interest so becoming due until such sums shall be paid to such Holders of such Securities or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal, premium, if any, or interest, if any, on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such principal, premium, or interest so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities entitled to the same and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent other than the Trustee for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will

(a) hold all sums held by it for the payment of principal, premium, if any, or interest, if any, on Securities of such series in trust for the benefit of the Holders of the Securities entitled thereto until such sums shall be paid to such Holders of such Securities or otherwise disposed of as herein provided;

(b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any such payment of principal, premium, if any, or interest, if any, on the Securities of such series; and

(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company may, at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to any series of Securities or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent in respect of each and every series of Securities as to which it seeks to discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in respect of all Securities, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Section 10.04 . Certificate to Trustee. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company (beginning in 2012), an Officers’ Certificate, one of whose signatories shall be the Company’s principal executive, accounting or financial officer, stating that in the course of the performance by the signers of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any of its covenants, conditions or agreements contained herein (without regard to any period of grace or requirement of notice provided hereunder), stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof.

Section 10.05 . Corporate Existence. Subject to Article 8 the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

Section 10.06 . Limitation on Liens.

(a) The Company will not, nor will it permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness for money borrowed (hereinafter in this Section 10.06 and 10.07 called “ Debt ”) secured by a mortgage, deed of trust, security interest, pledge, lien or other encumbrance (mortgages, deeds of trust, security interests, pledges, liens and other encumbrances being hereinafter in this Section 10.06 and 10.07 called “ lien ” or “ liens ”) upon any Principal Property owned by the Company or any Restricted Subsidiary or upon any shares of stock or indebtedness of any Restricted Subsidiary owned by the Company or any Restricted Subsidiary (whether such Principal Property, shares of stock or indebtedness are now owned or hereafter acquired) without in any such case effectively providing concurrently with the issuance, assumption or guaranty of any such Debt that the Securities (together with, if the Company shall so determine, any other indebtedness of or guaranteed by the Company or such Restricted Subsidiary ranking equally with the Securities and then existing or thereafter created) shall be secured equally and ratably with (or, at the option of the Company, prior to) such Debt so long as such Debt shall be so secured; provided , however , that the foregoing restrictions shall not apply to Debt secured by:

(i) liens on property, shares of stock or indebtedness (hereinafter in this Section 10.06 called “ property ”) of any corporation or other entity existing at the time such corporation or other entity becomes a Restricted Subsidiary;

(ii) liens on property existing at the time of acquisition of such property by the Company or a Restricted Subsidiary or liens on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Company or a Restricted Subsidiary; provided , however , that such liens do not attach to

or affect property theretofore owned by the Company or such Restricted Subsidiary;

(iii) liens to secure the payment of all or any part of the purchase price of the property subject to such liens, or liens consisting of the interests of lessors in property under capital leases of such property;

(iv) liens on property of a Restricted Subsidiary securing Debt owing to the Company or to another Restricted Subsidiary;

(v) liens existing at the date of this Indenture;

(vi) liens on property of the Company or a Restricted Subsidiary in favor of the United States of America or any state thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, or in favor of any other country or any political subdivision thereof, or in favor of holders of securities issued by any such governmental authority or entity, to secure partial, progress, advance or other payments pursuant to any contract or statute (including, without limitation, liens to secure Debt of the industrial revenue bond type);

(vii) liens on property (and improvements thereto) to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of such property if such Debt is incurred prior to, at the time of or within one year after (or pursuant to a commitment obtained not later than one year after) the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property;

(viii) liens arising in connection with contracts and subcontracts with or made at the request of the United States of America, or any state thereof, or any department, agency or instrumentality of the United States or any state thereof;

(ix) mechanics’, materialmen’s, carriers’, growers’, producers’, farmers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;

(x) any lien arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;

(xi) liens for taxes, assessments or governmental charges or levies not yet delinquent, or liens for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith;

(xii) liens (including judgment liens) arising in connection with legal proceedings; or

(xiii) liens incurred or deposits made in the ordinary course of business in connection with or to secure the performance of bids, tenders, leases or trade contracts (other than for the payment of Debt) or to secure surety, appeal, indemnity, performance or other similar bonds;

(xiv) liens of any depositary bank consisting of statutory, common law or contractual rights of set-off or recoupment with respect to any deposit account; or

(xv) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any lien referred to in the foregoing clauses (i) to (xiv), inclusive; provided , however , that (A) the principal amount of Debt secured thereby shall not exceed the sum of the principal amount of and accrued and unpaid interest on the Debt so secured at the time of such extension, renewal or replacement and an amount necessary to pay any fees and expenses, including premiums, related to such extension, renewal or replacement, and (B) such extension, renewal or replacement lien shall be limited to all or a part of the property which secured the lien so extended, renewed or replaced (plus improvements on such property).

(b) Notwithstanding the foregoing provisions of this Section, the Company and any one or more Restricted Subsidiaries may issue, assume or guarantee Debt secured by liens which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Debt of the Company and its Restricted Subsidiaries which (if originally issued, assumed or guaranteed at such time) would otherwise be subject to the foregoing restrictions and any Attributable Debt (not including Debt permitted to be secured under clauses (i) through (xv) above), does not at the time exceed 15% of the Company’s Consolidated Net Tangible Assets.

Section 10.07 . Limitation on Sale and Lease-Back.

The Company will not, nor will it permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property (except for temporary leases for a term of not more than three years and except for leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries), which Principal Property has been or is to be sold or transferred by

the Company or such Restricted Subsidiary to such Person more than 120 days after the acquisition or completion of construction and commencement of full operation of such Principal Property by the Company or a Restricted Subsidiary (herein referred to as a “ Sale and Lease-Back Transaction ”), unless (a) the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions of Section 10.06, to issue, assume or guarantee Debt secured by a lien upon such Principal Property at least equal in amount to the Attributable Debt in respect of such arrangement without equally and ratably securing the Securities, provided , however , that from and after the date on which such arrangement becomes effective the Attributable Debt in respect of such arrangement shall be deemed for all purposes under Sections 10.06 and 10.07 to be Debt subject to the provisions of Section 10.06; or (b) the Company shall apply an amount in cash equal to the Attributable Debt in respect to such arrangement, within 120 days of the effective date of any such arrangement, to the retirement (other than any mandatory retirement or by way of payment at maturity) of Debt of the Company or any Restricted Subsidiary (other than Debt owned by the Company or any Restricted Subsidiary and other than Debt of the Company which is subordinated to the Securities) which by its terms matures at or is extendible or renewable at the option of the obligor to a date more than twelve months after the date of the creation of such Debt.

Section 10.08 . Waiver of Certain Covenants. The Company may omit in respect of any series of Securities, in any particular instance, to comply with any covenant or condition applicable to such series, if before or after the time for such compliance the Holders of at least a majority in principal amount of the Securities at the time Outstanding of such series shall, by Act of such Securityholders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, provided that no waiver by the Holders of the Securities of such series shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.

ARTICLE 11

R EDEMPTION OF S ECURITIES

Section 11.01 . Applicability of Article. The Company may reserve the right to redeem and pay before the Scheduled Maturity Date all or any part of the Securities of any series, either by optional redemption, sinking or purchase fund or analogous obligation or otherwise, by provision therefor in the form of Security for such series established and approved pursuant to Section 2.02 and 2.03 or as otherwise provided in Section 3.01, and on such terms as are specified in such form or in the indenture supplemental hereto with respect to Securities of such series as provided in Section 3.01. Redemption of Securities of any series shall be

made in accordance with the terms of such Securities and, to the extent that this Article does not conflict with such terms, the succeeding Sections of this Article.

Section 11.02 . Election to Redeem; Notice to Trustee. In case of any redemption at the election of the Company, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.

Section 11.03 . Selection by Trustee of Securities to be Redeemed. Except as otherwise provided in the terms of a particular series of Securities, if fewer than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, which may include provision for the selection for redemption of portions of the principal of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. Unless otherwise provided in the terms of a particular series of Securities, the portions of the principal of Securities so selected for partial redemption shall be equal to the minimum authorized denomination of the Securities of such series, or an integral multiple thereof, and the principal amount which remains outstanding shall not be less than the minimum authorized denomination for Securities of such series.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal of such Security which has been or is to be redeemed.

Section 11.04 . Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not fewer than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his or her address appearing in the Security Register on the applicable Record Date.

All notices of redemption shall state:

(1) the Redemption Date;

(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof;

(3) if fewer than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the Securities to be redeemed, from the Holder to whom the notice is given and that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of the same series in the aggregate principal amount equal to the unredeemed portion thereof will be issued in accordance with Section 11.07;

(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security, and that interest, if any, thereon shall cease to accrue from and after said date;

(5) the place where such Securities are to be surrendered for payment of the Redemption Price, which shall be the office or agency maintained by the Company in the Place of Payment pursuant to Section 10.02 hereof; and

(6) that the redemption is on account of a sinking or purchase fund, or other analogous obligation, if that be the case.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

Section 11.05 . Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of all the Securities which are to be redeemed on that date.

Section 11.06 . Securities Payable on Redemption Date. Notice of Redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with the notice, such Securities shall be paid by the Company at the Redemption Price. Any installment of interest due and payable on or prior to the Redemption Date shall be payable to the Holders of such Securities registered as such on the relevant Record Date according to the terms and the provisions of Section 3.07 above; unless, with respect to an Interest Payment Date that falls on a Redemption Date, such Securities provide that interest due on such date is to be paid to the Person to whom principal is payable.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Security, or as otherwise provided in such Security.

Section 11.07 . Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the office or agency maintained by the Company in the Place of Payment pursuant to Section 10.02 hereof with respect to that series (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge and at the expense of the Company, a new Security or Securities of the same series, tenor, terms and Scheduled Maturity Date, of any authorized denomination as requested by such Holders in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

Section 11.08 . Provisions with Respect to any Sinking Funds. Unless the form or terms of any series of Securities shall provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect to such series of Securities in cash, the Company may at its option (a) deliver to the Trustee for cancellation any Securities of such series theretofore acquired by the Company, or (b) receive credit for any Securities of such series (not previously so credited) acquired or redeemed by the Company (other than through operation of a mandatory sinking fund) and theretofore delivered to the Trustee for cancellation, and if it does so then (i) Securities so delivered or credited shall be credited at the applicable sinking fund Redemption Price with respect to Securities of such series, and (ii) on or before the 60th day next preceding each sinking fund Redemption Date with respect to such series of Securities, the Company will deliver to the Trustee (A) an Officers’ Certificate specifying the portions of such sinking fund payment to be satisfied by payment of cash and by the delivery or credit of Securities of such series acquired or redeemed by the Company, and (B) such Securities, to the extent not previously surrendered. Such Officers’ Certificate shall also state the basis for any such credit and that the Securities for which the Company elects to receive credit have not been previously so credited and were not acquired by the Company through operation of the mandatory sinking fund, if any, provided with respect to such Securities and shall also state that no Event of Default with respect to Securities of such series has occurred and is continuing. All Securities so delivered to the Trustee shall be canceled by the Trustee and no Securities shall be authenticated in lieu thereof.

If the sinking fund payment or payments (mandatory or optional) with respect to any series of Securities made in cash plus any unused balance of any preceding sinking fund payments with respect to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),

unless otherwise provided by the terms of such series of Securities, that cash shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of such series next following the date of such payment to the redemption of Securities of such series at the applicable sinking fund Redemption Price with respect to Securities of such series, together with accrued interest, if any, to the date fixed for redemption, with the effect provided in Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption on such sinking fund Redemption Date a sufficient principal amount of Securities of such series to utilize that cash and shall thereupon cause notice of redemption of the Securities of such series for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect provided in Section 11.06) for the redemption of Securities in part at the option of the Company. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities of such series shall be added to the next cash sinking fund payment with respect to Securities of such series received by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 11.08. Any and all sinking fund moneys with respect to Securities of any series held by the Trustee at the Maturity of Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity.

On or before each sinking fund Redemption Date provided with respect to Securities of any series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if any, to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 11.08.

The Trustee shall not redeem any Securities with sinking fund moneys or give any notice of redemption of Securities by operation of the applicable sinking fund during the continuance of a default in payment of interest on Securities of such series or of any Event of Default with respect to such series, except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article 11. Except as aforesaid, any moneys in the sinking fund with respect to Securities of any series at the time when any such default or Event of Default with respect to such series shall occur, and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default with respect to such series, be held as security for the payment of all Securities of such series; provided, however , that in case such default or Event of Default with respect to such series shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date on which such moneys may be applied pursuant to the provisions of this Section 11.08.

ARTICLE 12

R EPAYMENT AT O PTION OF H OLDERS

Section 12.01 . Applicability of Article. Repayment of Securities of any series which are by their terms repayable before their Scheduled Maturity Date at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.

Section 12.02 . Repayment of Securities. Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest thereon accrued to the Repayment Date specified in the terms of such Securities. On or before the Repayment Date, the Company will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Repayment Price of all the Securities which are to be repaid on such date.

Section 12.03 . Exercise of Option. Securities of any series subject to repayment at the option of the Holders thereof will contain an “ Option to Elect Repayment ” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “ Option to Elect Repayment ” form on the reverse of such Security duly completed by the Holder, must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to time notify the Holders of such Securities) not earlier than 30 days nor later than 15 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of $1,000 unless otherwise specified in the terms of such Security, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part, if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.

Section 12.04 . When Securities Presented for Repayment Become Due and Payable. If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid

by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) interest on such Securities or the portions thereof, as the case may be, shall cease to accrue.

Section 12.05 . Securities Repaid in Part. Upon surrender of any Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Security or Securities of the same series, tenor, terms and Scheduled Maturity Date, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested; all as of the day and year first above written.


The J. M. Smucker Company

By:
		Name:
		Title:


Attest:

By:
		Name:
		Title:


U.S. Bank National Association, Trustee

By:
		Name:
		Title:


Attest:

By:
		Name:
		Title:

Exhibit 4.7

THIRD AMENDED AND RESTATED INTERCREDITOR AGREEMENT

This THIRD AMENDED AND RESTATED INTERCREDITOR AGREEMENT is dated as of June 11, 2010, among (i) the holders of the 2000 Senior Notes (defined below) (the “ 2000 Noteholders ”), (ii) the holders of the 2004 Senior Notes (defined below) (the “ 2004 Noteholders ”), (iii) the holders of the 2007 Senior Notes (defined below) (the “ 2007 Noteholders ”), (iv) the holders of the 2008 Senior Notes (defined below) (the “ 2008 Noteholders ”), (v) the holders of the 2010 Senior Notes (defined below) that shall become a party hereto pursuant to Section 6.12(a) (the “ 2010 Noteholders ” and, together with the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders and the 2008 Noteholders collectively, the “ Noteholders ”), (vi) KeyBank National Association, in its capacity as administrative agent under the 2004 Bank Credit Agreement (defined below) for itself and on behalf of and for the benefit of the 2004 Banks (defined below) from time to time party to the 2004 Bank Credit Agreement (in such capacity, the “ 2004 Agent ”), (vii) Bank of Montreal, in its capacity as administrative agent under the 2009 Bank Credit Agreement (defined below) for itself and on behalf of and for the benefit of the 2009 Banks (defined below) from time to time party to the 2009 Bank Credit Agreement (in such capacity, the “ 2009 Agent ”), (viii) each of the holders of Additional Primary Senior Debt (defined below) that shall become a party hereto pursuant to Section 6.12(b) (the “ Additional Primary Senior Debt Holders ”) and (ix) each administrative agent or representative on behalf of any holder Additional Primary Senior Debt that shall become a party hereto pursuant to Section 6.12(b) (the “ Additional Primary Senior Debt Agents ”).

1.	PRELIMINARY STATEMENT.

1.1. The J.M. Smucker Company, an Ohio corporation (the “ Company ”) and certain institutional investors have entered into those certain separate Note Purchase Agreements, each dated as of August 23, 2000 (as amended, restated or otherwise modified from time to time, collectively, the “ 2000 Note Agreement ”), pursuant to which the Company, among other things, issued to such investors its 7.94% Series C Senior Notes due September 1, 2010 in the aggregate principal amount of $10,000,000 (the “ 2000 Senior Notes ”).

1.2. Pursuant to the terms of that certain Amended and Restated Guaranty Agreement, dated as of May 31, 2007, by J.M. Smucker LLC (formerly known as MIX Acquisition Corporation), a Delaware limited liability company and wholly-owned subsidiary of the Company (“ Smucker LLC ”) in favor of the 2000 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2000 Smucker LLC Guaranty Agreement ”), Smucker LLC has guaranteed to each 2000 Noteholder all amounts owing by the Company to each 2000 Noteholder pursuant to the terms of the 2000 Senior Notes and the 2000 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2000 Smucker LLC Noteholder Guarantied Obligations ”).

1.3. Pursuant to the terms of that certain Guaranty Agreement, dated as of November 6, 2008, by The Folgers Coffee Company, a Delaware corporation and wholly-owned subsidiary of the Company (“ Folgers ”) in favor of the 2000 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2000 Folgers Guaranty Agreement ” and together with the 2000 Smucker LLC Guaranty Agreement, the “ 2000 Guaranty Agreements ”), Folgers has guaranteed to each 2000 Noteholder all amounts owing by the Company to each 2000 Noteholder pursuant to the terms of the 2000 Senior Notes and the 2000 Note Agreement in respect of principal,

interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2000 Folgers Noteholder Guarantied Obligations ” and together with the 2000 Smucker LLC Noteholder Guarantied Obligations, collectively, the “ 2000 Noteholder Guarantied Obligations ”).

1.4. The Company and certain institutional investors have entered into that certain Note Purchase Agreement, dated as of May 27, 2004 (as amended, restated or otherwise modified from time to time, the “ 2004 Note Agreement ”), pursuant to which the Company issued to such investors its 4.78% Senior Notes due June 1, 2014 in the aggregate principal amount of $100,000,000 (the “ 2004 Senior Notes ”).

1.5. Pursuant to the terms of that certain Amended and Restated Guaranty Agreement, dated as of May 31, 2007, by Smucker LLC in favor of the 2004 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2004 Smucker LLC Guaranty Agreement ”), Smucker LLC has guaranteed to each 2004 Noteholder all amounts owing by the Company pursuant to the terms of the 2004 Senior Notes and the 2004 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2004 Smucker LLC Noteholder Guarantied Obligations ”).

1.6. Pursuant to the terms of that certain Guaranty Agreement, dated as of November 6, 2008, by Folgers in favor of the 2004 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2004 Folgers Guaranty Agreement ” and together with the 2004 Smucker LLC Guaranty Agreement, the “ 2004 Guaranty Agreements ”), Folgers has guaranteed to each 2004 Noteholder all amounts owing by the Company pursuant to the terms of the 2004 Senior Notes and the 2004 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2004 Folgers Noteholder Guarantied Obligations ” and together with the 2004 Smucker LLC Noteholder Guarantied Obligations, collectively, the “ 2004 Noteholder Guarantied Obligations ”).

1.7. The Company and certain institutional investors have entered into that certain Note Purchase Agreement, dated as of May 31, 2007 (as amended, restated or otherwise modified from time to time, the “ 2007 Note Agreement ”), pursuant to which the Company issued to such investors its 5.55% Senior Notes due April 1, 2022 in the aggregate principal amount of $400,000,000 (the “ 2007 Senior Notes ”).

1.8. Pursuant to the terms of that certain Guaranty Agreement, dated as of May 31, 2007, by Smucker LLC in favor of the 2007 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2007 Smucker LLC Guaranty Agreement ”), Smucker LLC has guaranteed to each 2007 Noteholder all amounts owing by the Company pursuant to the terms of the 2007 Senior Notes and the 2007 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2007 Smucker LLC Noteholder Guarantied Obligations ”).

1.9. Pursuant to the terms of that certain Guaranty Agreement, dated as of November 6, 2008, by Folgers in favor of the 2007 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2007 Folgers Guaranty Agreement ” and together with the 2007 Smucker LLC Guaranty Agreement, the “ 2007 Guaranty Agreements ”), Folgers has guaranteed to each 2007 Noteholder all amounts owing by the Company pursuant to the terms of the 2007 Senior Notes and the 2007 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2007 Folgers Noteholder Guarantied Obligations ” and together with the 2007 Smucker LLC Noteholder Guarantied Obligations, collectively, the “ 2007 Noteholder Guarantied Obligations ”).

1.10. The Company and certain institutional investors have entered into that certain Note Purchase Agreement, dated as of October 23, 2008 (as amended, restated or otherwise modified from time to time, the “ 2008 Note Agreement ”), pursuant to which the Company issued to such investors its 6.63% Senior Notes due November 1, 2018 in the aggregate principal amount of $376,000,000 and its 6.12% Senior Notes due November 1, 2015 in the aggregate principal amount of $24,000,000 (collectively, the “ 2008 Senior Notes ”).

1.11. Pursuant to the terms of that certain Guaranty Agreement, dated as of October 23, 2008, by Smucker LLC in favor of the 2008 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2008 Smucker LLC Guaranty Agreement ”), Smucker LLC has guaranteed to each 2008 Noteholder all amounts owing by the Company pursuant to the terms of the 2008 Senior Notes and the 2008 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2008 Smucker LLC Noteholder Guarantied Obligations ”).

1.12. Pursuant to the terms of that certain Guaranty Agreement, dated as of November 6, 2008, by Folgers in favor of the 2008 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2008 Folgers Guaranty Agreement ” and together with the 2008 Smucker LLC Guaranty Agreement, the “ 2008 Guaranty Agreements ”), Folgers has guaranteed to each 2008 Noteholder all amounts owing by the Company pursuant to the terms of the 2008 Senior Notes and the 2008 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2008 Folgers Noteholder Guarantied Obligations ”, and together with the 2008 Smucker LLC Noteholder Guarantied Obligations, collectively, the “ 2008 Noteholder Guarantied Obligations ”).

1.13. On or about the date hereof, the Company and certain institutional investors will be entering into that certain Note Purchase Agreement (as amended, restated or otherwise modified from time to time, the “ 2010 Note Agreement ”, and together with the 2000 Note Agreement, the 2004 Note Agreement, the 2007 Note Agreement and the 2008 Note Agreement, collectively, the “ Note Agreements ”), pursuant to which the Company will issue to such investors its 4.50% Senior Notes due June 1, 2025 in the aggregate principal amount of $400,000,000 (the “ 2010 Senior Notes ”). Each 2010 Noteholder will become a party hereto pursuant to Section 6.12(a).

1.14. On or about the date hereof, Smucker LLC will be executing and delivering that certain Guaranty Agreement in favor of the 2010 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2010 Smucker LLC Guaranty Agreement ”), pursuant to which Smucker LLC will guaranty to each 2010 Noteholder all amounts owing by the Company pursuant to the terms of the 2010 Senior Notes and the 2010 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2010 Smucker LLC Noteholder Guarantied Obligations ”).

1.15. On or about the date hereof, Folgers will be executing and delivering that certain Guaranty Agreement in favor of the 2010 Noteholders (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2010 Folgers Guaranty Agreement ” and together with the 2010 Smucker LLC Guaranty Agreement, the “ 2010 Guaranty Agreements ”), pursuant to which Folgers will guaranty to each 2010 Noteholder all amounts owing by the Company pursuant to the terms of the 2010 Senior Notes and the 2010 Note Agreement in respect of principal, interest, Make-Whole Amount and all other fees and expenses incurred thereunder (the “ 2010 Folgers Noteholder Guarantied Obligations ” and together with the 2010 Smucker LLC Noteholder Guarantied Obligations, collectively, the “ 2010 Noteholder Guarantied Obligations ” and, together with the 2000 Noteholder Guarantied Obligations, the 2004 Noteholder Guarantied Obligations, the 2007 Noteholder Guaranteed

Obligations and the 2008 Noteholder Guarantied Obligations, collectively, the “ Noteholder Guarantied Obligations ”).

1.16. KeyBank National Association, Bank of Montreal, as Canadian funding agent and documentation agent and the lenders from time to time party thereto (together with their respective successors and assigns, collectively, the “ 2004 Banks ”) are or will be parties to that certain Credit Agreement with the Company and Smucker Foods of Canada Corp. (formerly known as J.M. Smucker (Canada) Inc.) (the “ Canadian Borrower ” and, collectively, with the Company, the “ Borrowers ”), dated as of June 18, 2004, pursuant to which the 2004 Banks are making and providing, and may continue to make and provide, certain revolving credit loans, letters of credit and other financial accommodations to the Borrowers (as amended, restated or otherwise modified from time to time, the “ 2004 Bank Credit Agreement ”).

1.17. Pursuant to the terms of the 2004 Bank Credit Agreement, Smucker LLC entered into that certain Guaranty of Payment, dated as of June 18, 2004, in favor of the 2004 Agent, for the benefit of the 2004 Banks (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2004 Smucker LLC Bank Guaranty Agreement ”), pursuant to which Smucker LLC has guarantied to the 2004 Agent and each 2004 Bank all amounts owing by the Borrowers pursuant to the terms of the 2004 Bank Credit Agreement and the other loan documents executed in connection therewith in respect of principal, interest, letter of credit obligations, premiums, breakage costs, indemnities, utilization, facility, letter of credit and all other fees and expenses incurred thereunder (the “ 2004 Smucker LLC Bank Guarantied Obligations ”).

1.18. Pursuant to the terms of that certain Guaranty Agreement, dated as of November 6, 2008, by Folgers in favor the 2004 Agent and the 2004 Banks (as such agreement may from time to time be amended, restated or otherwise modified or replaced, the “ 2004 Folgers Bank Guaranty Agreement ”), Folgers has guarantied to the 2004 Agent and each 2004 Bank all amounts owing by the Borrowers pursuant to the terms of the 2004 Bank Credit Agreement and the other loan documents executed in connection therewith in respect of principal, interest, letter of credit obligations, premiums, breakage costs, indemnities, utilization, facility, letter of credit and all other fees and expenses incurred thereunder (the “ 2004 Folgers Bank Guarantied Obligations ”, and together with the 2004 Smucker LLC Bank Guarantied Obligations, collectively, the “ 2004 Bank Guarantied Obligations ”).

1.19. Bank of Montreal and the lenders from time to time party thereto (together with their respective successors and assigns, collectively, the “ 2009 Banks ”, and together with the 2004 Banks, the “ Banks ”) are or will be parties to that certain Credit Agreement with the Borrowers, dated as of October 29, 2009, pursuant to which the 2009 Banks are making and providing, and may continue to make and provide, certain revolving credit loans, letters of credit and other financial accommodations to the Borrowers (as amended, restated or otherwise modified from time to time, the “ 2009 Bank Credit Agreement ” and together with the 2004 Bank Credit Agreement, the “ Bank Credit Agreements ”).

1.20. Pursuant to Section 12 of the 2009 Bank Credit Agreement, Smucker LLC and Folgers have guarantied to the 2009 Agent and each 2009 Bank all amounts owing by the Borrowers pursuant to the terms of the 2009 Bank Credit Agreement and the other loan documents executed in connection therewith in respect of principal, interest, letter of credit obligations, premiums, breakage costs, indemnities, utilization, facility, letter of credit and all other fees and expenses incurred thereunder (the “ 2009 Bank Guarantied Obligations ” and together with the 2004 Bank Guarantied Obligations, collectively, the “ Bank Guarantied Obligations ”).

1.21. Pursuant to the terms of that certain Second Amended and Restated Intercreditor Agreement dated as of October 23, 2008 (the “ Existing Intercreditor Agreement ”), the 2004 Agent,

certain investors defined therein as the 1999 Noteholders, the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders and the 2008 Noteholders agreed to set forth their relative rights and priorities with respect to certain obligations defined therein as the Guarantied Obligations.

1.22. The parties hereto have agreed to amend and restate the terms of the Existing Intercreditor Agreement in their entirety as set forth herein in order to (a) reflect that the 1999 Senior Notes (as defined in the Existing Intercreditor Agreement) have matured, (b) add the 2010 Noteholders as parties thereto, (c) add the 2009 Agent as a party thereto, and (d) define the rights and obligations of the Banks, the Noteholders, any Additional Primary Senior Debt Holder and any Additional Primary Senior Debt Agent with respect to each other such that any payments received by any Lender on account of its respective Guarantied Obligations shall be shared among all Lenders equally and ratably in accordance with the respective amounts of the Guarantied Obligations (which, for purposes of calculating what percentage is “ratable” under this Agreement, shall only include, (w) for the 2004 Agent and the 2004 Banks, the sum of the principal, interest, Letter of Credit Exposure and agent, utilization, facility, breakage, letter of credit and other similar fees owing to the 2004 Agent and the 2004 Banks, collectively, (x) for the 2009 Agent and the 2009 Banks, the sum of the principal, interest, L/C Obligations and agent, utilization, facility, breakage, letter of credit and other similar fees owing to the 2009 Agent and the 2009 Banks, collectively, (y) for each Noteholder, the sum of the principal, interest and Make-Whole Amounts owing to such Noteholder, and (z) for each Additional Primary Secured Debt Holder and each Additional Primary Senior Debt Agent, the sum of principal, interest, letter of credit exposure and agent, utilization, facility, breakage, letter of credit, make-whole amounts and other similar fees owing, as applicable to such Additional Primary Senior Debt Holder and such Additional Primary Senior Debt Agent and the applicable holders of Additional Primary Senior Debt), then held by each of them, all as set forth in this Agreement.

2.	INTERPRETATION OF THIS AGREEMENT.

2.1. Defined Terms.

As used in this Agreement, capitalized terms have the respective meanings specified below or set forth in the section of this Agreement referred to immediately following such term (such definitions, unless otherwise expressly provided, to be equally applicable to both the singular and plural forms of the terms defined):

Additional Primary Debt – shall mean any credit, loan or borrowing facility or any indenture, note purchase agreement or similar agreement by the Company or any Subsidiary entered into after the date hereof providing, in each case, for the incurrence of Senior Funded Debt in a principal amount equal to or greater than $120,000,000, as amended, restated, supplemented or otherwise modified and together with increases, refinancings and replacements thereof.

Additional Primary Senior Debt – means Additional Primary Debt which shall have become Additional Primary Senior Debt as contemplated by Section 6.12(b) of this Agreement.

Additional Primary Senior Debt Agent – has the meaning set forth in the introductory paragraph of this Agreement.

Additional Primary Senior Debt Holders – has the meaning set forth in the introductory paragraph of this Agreement.

Additional Primary Senior Debt Agreement – shall mean each credit agreement, loan agreement, note purchase agreement, indenture or similar agreement evidencing or providing for the issuance of any Additional Primary Senior Debt, and shall include all other agreements executed and delivered in connection with the relevant Additional Primary Senior Debt, in each case as the same may be modified, amended, extended, restated or supplemented from time to time.

Additional Primary Senior Debt Guarantied Obligations – means any outstanding obligation owed by the Company pursuant to an Additional Primary Senior Debt Agreement, outstanding under an Additional Primary Senior Debt Agreement and guaranteed by a Subsidiary Guarantor pursuant to an Additional Primary Senior Debt Guaranty Agreement.

Additional Primary Senior Debt Guaranty Agreements – means any guaranty or similar agreement executed and delivered by a Subsidiary of the Company pursuant to the terms of a Additional Primary Senior Debt Agreement and pursuant to which such Subsidiary guarantees all principal, interest, letter of credit exposure, make-whole amounts and all other fees and expenses owing by the Company.

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.

Agreement, this – means this Third Amended and Restated Intercreditor Agreement, as it may be amended, modified, supplemented or restated from time to time.

Bank Credit Agreements – has the meaning set forth in Section 1.19 of this Agreement.

Bank Guarantied Obligations – has the meaning set forth in Section 1.20 of this Agreement.

Bank Guaranty Agreements – means, collectively, the 2004 Smucker LLC Bank Guaranty Agreement, the 2004 Folgers Bank Guaranty Agreement, the guaranty by Smucker LLC and Folgers pursuant to Section 12 of the 2009 Bank Credit Agreement and any other guaranty of the Bank Guarantied Obligations delivered to the 2004 Agent or the 2009 Agent or any of the Banks.

Banks – has the meaning set forth in Section 1.19 to this Agreement.

Benefitted Lender – has the meaning set forth in Section 3.5 of this Agreement.

Borrowers – has the meaning set forth in Section 1.16 of this Agreement.

Canadian Borrower – has the meaning set forth in Section 1.16 of this Agreement.

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.

Company – has the meaning set forth in Section 1.1 of this Agreement.

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 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.

Distribution Agent – has the meaning set forth in Section 3.3(a) of this Agreement.

Enforcement Event – shall mean (a) if one or more Noteholders, the Required Lenders, as defined either Bank Credit Agreement, the 2004 Agent, on behalf of the 2004 Banks, the 2009 Agent, on behalf of the 2009 Banks, any Additional Primary Senior Debt Holder or any Additional Primary Senior Debt Agent, on behalf of the applicable holders of Additional Primary Senior Debt, make demand for payment (that is not revoked) of, or accelerate (that is not revoked) the time for payment prior to the scheduled payment date of, any of the Guarantied Obligations; (b) if one or more Noteholders, one or more Banks, the 2004 Agent, on behalf of the 2004 Banks, the 2009 Agent, on behalf of the 2009 Banks, any Additional Primary Senior Debt Holder, any Additional Senior Debt Agent, or any holders of Additional Primary Senior Debt, commence the judicial enforcement of any rights or remedies under or with respect to either Bank Credit Agreement, any Note Agreement, any Additional Primary Senior Debt Agreement, any Bank Guaranty Agreement, any Noteholder Guaranty Agreement, or any Additional Primary Senior Debt Guaranty Agreement, or if any such Person or Persons should setoff or appropriate any balances held by it or them for the account of the Company or a Subsidiary Guarantor or any other property at any time held or owing by it to or for the credit of, or otherwise for the account of, the Company or a Subsidiary Guarantor; (c) if the Commitment, as defined in the 2004 Bank Credit Agreement, is terminated (and not reinstated) by the Required Lenders (as defined in the 2004 Bank Credit Agreement) as a result of an “Event of Default” under and as defined in the 2004 Bank Credit Agreement; (d) if the Revolving Credit Commitment, as defined in the 2009 Bank Credit Agreement, is terminated (and not reinstated) by the Required Lenders (as defined in the 2009 Bank Credit Agreement) as a result of an “Event of Default” under and as defined in the 2009 Bank Credit Agreement; or (e) if a commitment to provide credit to the Company or any Subsidiary is terminated (and not reinstated) under any Additional Primary Senior Debt

Agreement as a result of any event of default or failure of performance by the Company or any Subsidiary under such Additional Primary Senior Debt Agreement.

Event of Default – means (a) an “Event of Default” as defined in any of the Note Agreements, (b) an “Event of Default” as defined in either Bank Credit Agreement, or (c) an “Event of Default” or other similar event or condition as defined or provided for in any Additional Primary Senior Debt Agreement.

Existing Intercreditor Agreement – has the meaning set forth in Section 1.21 of this Agreement.

Folgers – has the meaning set forth in Section 1.3 of this Agreement.

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

Guarantied Obligations – means, collectively, the Noteholder Guarantied Obligations, the Bank Guarantied Obligations and the Additional Primary Senior Debt Guarantied Obligations.

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

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

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

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

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

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

Insolvency Event – shall mean and include:

(a) the pendency of any case against the Company or a Subsidiary Guarantor arising under the Bankruptcy Code of 1978, as amended, or any successor statute;

(b) the pendency of any case against the Company or a Subsidiary Guarantor arising under any other bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, liquidation or other similar law of any jurisdiction;

(c) the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official of the Company or a Subsidiary Guarantor or any substantial assets of any of them;

(d) any assignment for the benefit of creditors of the Company or a Subsidiary Guarantor; or

(e) the failure of the Company or a Subsidiary Guarantor generally to pay its debts as they become due.

L/C Obligations – has the meaning set forth in the 2009 Bank Credit Agreement.

Lenders – means, collectively, the Banks, the 2004 Agent, the 2009 Agent, the Noteholders, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder.

Letters of Credit – has the meaning set forth in the Bank Credit Agreements (as in effect on the date hereof) and letters of credit issued under any Additional Primary Senior Debt Agreement.

Letter of Credit Exposure – has the meaning set forth in the 2004 Bank Credit Agreement.

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).

Majority Additional Primary Senior Debt Holders – shall mean (a) with respect to all Additional Primary Senior Debt Agreements at the relevant time then outstanding, holders of a majority in aggregate principal amount of Additional Primary Senior Debt under each Additional Primary Senior Debt Agreement or, to the extent applicable, the Additional Primary Senior Debt Agent on behalf of the holders of a majority in aggregate principal amount of Additional Primary Senior Debt under each applicable Additional Primary Senior Debt Agreement, and (b) with respect to Section 5.8 only, with respect to any Additional Primary Senior Debt at the relevant time then outstanding, holders of a majority in aggregate principal amount of Additional Primary Senior Debt under the applicable Additional Primary Senior Debt Agreement or, to the extent applicable, the Additional Primary Senior Debt Agent on behalf of the holders of a majority in aggregate principal amount of Additional Primary Senior Debt under the applicable Additional Primary Senior Debt Agreement.

Majority Banks – means, collectively, the Majority 2004 Banks and the Majority 2009 Banks.

Majority 2004 Banks – means, the 2004 Agent, on behalf of the Required Lenders, as defined in the 2004 Bank Credit Agreement.

Majority 2009 Banks – means, the 2009 Agent, on behalf of the Required Lenders, as defined in the 2009 Bank Credit Agreement.

Majority Noteholders – means, collectively, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders and the Majority 2010 Noteholders.

Majority 2000 Noteholders – means the holder or holders of at least a majority of the aggregate principal amount of the 2000 Noteholder Guarantied Obligations from time to time outstanding, exclusive of 2000 Noteholder Guarantied Obligations then owned by any one or more of the Company, any Subsidiary of the Company (including, without limitation, any Subsidiary Guarantor) or any Affiliate of the Company.

Majority 2004 Noteholders – means the holder or holders of at least a majority of the aggregate principal amount of the 2004 Noteholder Guarantied Obligations from time to time outstanding, exclusive of 2004 Noteholder Guarantied Obligations then owned by any one or more of the Company, any Subsidiary of the Company (including, without limitation, any Subsidiary Guarantor) or any Affiliate of the Company.

Majority 2007 Noteholders – means the holder or holders of at least a majority of the aggregate principal amount of the 2007 Noteholder Guarantied Obligations from time to time outstanding, exclusive of 2007 Noteholder Guarantied Obligations then owned by any one or more of the Company, any Subsidiary of the Company (including, without limitation, any Subsidiary Guarantor) or any Affiliate of the Company.

Majority 2008 Noteholders – means the holder or holders of at least a majority of the aggregate principal amount of the 2008 Noteholder Guarantied Obligations from time to time outstanding, exclusive of 2008 Noteholder Guarantied Obligations then owned by any one or more of the Company, any Subsidiary of the Company (including, without limitation, any Subsidiary Guarantor) or any Affiliate of the Company.

Majority 2010 Noteholders – means the holder or holders of at least a majority of the aggregate principal amount of the 2010 Noteholder Guarantied Obligations from time to time outstanding, exclusive of 2010 Noteholder Guarantied Obligations then owned by any one or more of the Company, any Subsidiary of the Company (including, without limitation, any Subsidiary Guarantor) or any Affiliate of the Company.

Make-Whole Amount – has the meaning set forth in the Note Agreements.

Note Agreements – has the meaning set forth in Section 1.13 of this Agreement.

Noteholder Guarantied Obligations – has the meaning set forth in Section 1.15 of this Agreement.

Noteholder Guaranty Agreements – means, collectively, the 2000 Guaranty Agreements, the 2004 Guaranty Agreements, the 2007 Guaranty Agreements, the 2008 Guaranty Agreements, the 2010 Guaranty Agreements and any other guaranty of the Noteholder Guarantied Obligations delivered to any of the Noteholders.

Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

Notice of Event of Default – means a written notification given by or on behalf of any Lender certifying that an Event of Default has occurred.

Notice of Shared Payment – means a written notification given by or on behalf of any Lender stating that such Lender has received a Shared Payment.

Person – means an individual, partnership, corporation (including a business trust), limited liability company or partnership, joint stock company, trust, unincorporated association, joint venture, governmental agency or other authority.

Receiving Lender – has the meaning set forth in Section 3.2 of this Agreement.

Requisite Lenders – means, collectively, the Majority Noteholders, the Majority Banks and the Majority Additional Primary Senior Debt Holders.

Reserve Account – has the meaning set forth in Section 3.2 of this Agreement.

Senior Funded Debt – means, with respect to any Person, all unsecured, unsubordinated 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.

Shared Payment – has the meaning set forth in Section 3.2 of this Agreement.

Sharing Event – means the occurrence of an Enforcement Event or an Insolvency Event.

Smucker LLC – has the meaning set forth in Section 1.2 of this Agreement.

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

Subsidiary Guarantor – means, collectively, Smucker LLC, Folgers and any Subsidiary of the Company that has executed and delivered (i) a Noteholder Guaranty Agreement pursuant to the terms of the Note Agreements, (ii) a Bank Guaranty Agreement pursuant to the terms of the Bank Credit Agreements and (iii) an Additional Primary Senior Debt Guaranty Agreement pursuant to the terms of any Additional Primary Senior Debt Agreement.

2000 Folgers Guaranty Agreement – has the meaning set forth in Section 1.3 of this Agreement.

2000 Folgers Noteholder Guarantied Obligations – has the meaning set forth in Section 1.3 of this Agreement.

2000 Guaranty Agreements – has the meaning set forth in Section 1.3 of this Agreement.

2000 Note Agreement – has the meaning set forth in Section 1.1 of this Agreement.

2000 Noteholder Guarantied Obligations – has the meaning set forth in Section 1.3 of this Agreement.

2000 Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

2000 Senior Notes – has the meaning set forth in Section 1.1 of this Agreement.

2000 Smucker LLC Guaranty Agreement – has the meaning set forth in Section 1.2 of this Agreement.

2000 Smucker LLC Noteholder Guarantied Obligations – has the meaning set forth in Section 1.2 of this Agreement.

2004 Agent – has the meaning set forth in the introductory paragraph of this Agreement.

2004 Bank Credit Agreement – has the meaning set forth in Section 1.16 of this Agreement.

2004 Bank Guarantied Obligations – has the meaning set forth in Section 1.18 of this Agreement.

2004 Banks – has the meaning set forth in Section 1.16 of this Agreement.

2004 Folgers Bank Guarantied Obligations – has the meaning set forth in Section 1.18 of this Agreement.

2004 Folgers Bank Guaranty Agreement – has the meaning set forth in Section 1.18 of this Agreement.

2004 Folgers Guaranty Agreement – has the meaning set forth in Section 1.6 of this Agreement.

2004 Folgers Noteholder Guarantied Obligations – has the meaning set forth in Section 1.6 of this Agreement.

2004 Guaranty Agreements – has the meaning set forth in Section 1.6 of this Agreement.

2004 Note Agreement – has the meaning set forth in Section 1.4 of this Agreement.

2004 Noteholder Guarantied Obligations – has the meaning set forth in Section 1.6 of this Agreement.

2004 Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

2004 Senior Notes – has the meaning set forth in Section 1.4 of this Agreement.

2004 Smucker LLC Bank Guarantied Obligations – has the meaning set forth in Section 1.17 of this Agreement.

2004 Smucker LLC Bank Guaranty Agreement – has the meaning set forth in Section 1.17 of this Agreement.

2004 Smucker LLC Guaranty Agreement – has the meaning set forth in Section 1.5 of this Agreement.

2004 Smucker LLC Noteholder Guarantied Obligations – has the meaning set forth in Section 1.5 of this Agreement.

2007 Folgers Guaranty Agreement – has the meaning set forth in Section 1.9 of this Agreement.

2007 Folgers Noteholder Guarantied Obligations has the meaning set forth in Section 1.9 of this Agreement.

2007 Guaranty Agreements – has the meaning set forth in Section 1.9 of this Agreement.

2007 Note Agreement – has the meaning set forth in Section 1.7 of this Agreement.

2007 Noteholder Guarantied Obligations – has the meaning set forth in Section 1.9 of this Agreement.

2007 Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

2007 Senior Notes – has the meaning set forth in Section 1.7 of this Agreement.

2007 Smucker LLC Guaranty Agreement – has the meaning set forth in Section 1.8 of this Agreement.

2007 Smucker LLC Noteholder Guarantied Obligations – has the meaning set forth in Section 1.8 of this Agreement.

2008 Folgers Guaranty Agreement – has the meaning set forth in Section 1.12 of this Agreement.

2008 Folgers Noteholder Guarantied Obligations – has the meaning set forth in Section 1.12 of this Agreement.

2008 Guaranty Agreements – has the meaning set forth in Section 1.12 of this Agreement.

2008 Note Agreement – has the meaning set forth in Section 1.10 of this Agreement.

2008 Noteholder Guarantied Obligations – has the meaning set forth in Section 1.12 of this Agreement.

2008 Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

2008 Senior Notes – has the meaning set forth in Section 1.10 of this Agreement.

2008 Smucker LLC Guaranty Agreement – has the meaning set forth in Section 1.11 of this Agreement.

2008 Smucker LLC Noteholder Guarantied Obligations – has the meaning set forth in Section 1.11 of this Agreement.

2009 Agent – has the meaning set forth in the introductory paragraph of this Agreement.

2009 Bank Credit Agreement – has the meaning set forth in Section 1.19 of this Agreement.

2009 Bank Guarantied Obligations – has the meaning set forth in Section 1.20 of this Agreement.

2009 Banks – has the meaning set forth in Section 1.19 of this Agreement.

2010 Folgers Guaranty Agreement – has the meaning set forth in Section 1.15 of this Agreement.

2010 Folgers Noteholder Guarantied Obligations – has the meaning set forth in Section 1.15 of this Agreement.

2010 Guaranty Agreements – has the meaning set forth in Section 1.15 of this Agreement.

2010 Note Agreement – has the meaning set forth in Section 1.13 of this Agreement.

2010 Noteholder Guarantied Obligations – has the meaning set forth in Section 1.15 of this Agreement.

2010 Noteholders – has the meaning set forth in the introductory paragraph of this Agreement.

2010 Senior Notes – has the meaning set forth in Section 1.13 of this Agreement.

2010 Smucker LLC Guaranty Agreement – has the meaning set forth in Section 1.14 of this Agreement.

2010 Smucker LLC Noteholder Guarantied Obligations – has the meaning set forth in Section 1.14 of this Agreement.

2.2. Certain Other Terms.

The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references are to this Agreement unless otherwise specified. All terms defined in this Agreement

in the singular shall have comparable meanings when used in the plural, and vice versa, unless otherwise specified.

3.	PAYMENTS, ETC.

3.1. Event of Default; Receipt of Shared Payment.

(a) To the extent the Company has not already provided written notification of an Event of Default, each Noteholder shall give a Notice of Event of Default or a Notice of Shared Payment, as applicable, to each other Noteholder, the 2004 Agent, the 2009 Agent, each Additional Primary Senior Debt Holder and each Additional Primary Senior Debt Agent promptly within two (2) business days after obtaining knowledge of any Event of Default (that has not been waived or remedied) with respect to the Noteholder Guarantied Obligations owed to such Noteholder or the receipt by such Noteholder of a Shared Payment, provided that the failure to give any Notice of Event of Default shall not affect the existence of an Event of Default or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any other Lender or any third party, and further provided that no Noteholder shall be required to deliver a Notice of Event of Default in connection with any Event of Default in respect of which any other Noteholder shall previously have delivered a Notice of Event of Default pursuant to this Section 3.1(a).

(b) To the extent the Company has not already provided written notification of an Event of Default, the 2004 Agent shall give a Notice of Event of Default or a Notice of Shared Payment, as applicable, to each Noteholder, the 2009 Agent, each Additional Primary Senior Debt Holder and each Additional Primary Senior Debt Agent promptly within two (2) business days after obtaining knowledge (in accordance with Section 9.6 of the 2004 Bank Credit Agreement (as in effect on the date hereof)) of any Event of Default (that has not been waived or remedied) with respect to the 2004 Bank Guarantied Obligations or the receipt by the 2004 Agent or any 2004 Bank of a Shared Payment, provided that the failure to give any Notice of Event of Default shall not affect the existence of an Event of Default or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any other Lender or any third party.

(c) To the extent the Company has not already provided written notification of an Event of Default, the 2009 Agent shall give a Notice of Event of Default or a Notice of Shared Payment, as applicable, to each Noteholder, the 2004 Agent, each Additional Primary Senior Debt Holder and each Additional Primary Senior Debt Agent promptly within two (2) business days after obtaining knowledge (in accordance with Section 11.3 of the 2009 Bank Credit Agreement (as in effect on the date hereof)) of any Event of Default (that has not been waived or remedied) with respect to the 2009 Bank Guarantied Obligations or the receipt by the 2009 Agent or any 2009 Bank of a Shared Payment, provided that the failure to give any Notice of Event of Default shall not affect the existence of an Event of Default or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any other Lender or any third party.

(d) To the extent the Company has not already provided written notification of an Event of Default, each Additional Primary Senior Debt Holder shall give a Notice of Event of Default or a Notice of Shared Payment, as applicable, to each other Additional Primary Senior Debt Holder, each Noteholder, the 2004 Agent, the 2009 Agent and each Additional Primary Senior Debt Agent promptly within two (2) business days after obtaining knowledge of any Event of Default (that has not been waived or remedied) with respect to the Additional Primary Senior

Debt Guarantied Obligations owed to such Additional Primary Senior Debt Holder or the receipt by such Additional Primary Senior Debt Holder of a Shared Payment, provided that the failure to give any Notice of Event of Default shall not affect the existence of an Event of Default or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any other Lender or any third party, and further provided that no Additional Primary Senior Debt Holder shall be required to deliver a Notice of Event of Default in connection with any Event of Default in respect of which any other Additional Primary Senior Debt Holder shall previously have delivered a Notice of Event of Default pursuant to this Section 3.1(d).

(e) To the extent the Company has not already provided written notification of an Event of Default, each Additional Primary Senior Debt Agent shall give a Notice of Event of Default or a Notice of Shared Payment, as applicable, to each Additional Primary Senior Debt Holder, each Noteholder, the 2004 Agent, the 2009 Agent and each other Additional Primary Senior Debt Agent promptly within two (2) business days after obtaining knowledge of any Event of Default (that has not been waived or remedied) with respect to the Additional Primary Senior Debt Guarantied Obligations owed to such Additional Primary Senior Debt Agent and the applicable holders of Additional Primary Senior Debt, or the receipt by such Additional Primary Senior Debt Agent of a Shared Payment, provided that the failure to give any Notice of Event of Default shall not affect the existence of an Event of Default or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any other Lender or any third party.

3.2. Sharing of Payments.

Each Lender (a “ Receiving Lender ”) agrees that any payment of any kind (including, without limitation, any payment resulting from a set-off of a deposit account or any payment or distribution made in the context of any insolvency or reorganization proceeding) received by it on account of the Guarantied Obligations (such payment, a “ Shared Payment ”) from any Subsidiary Guarantor is to be distributed among the Lenders equally and ratably in accordance with Section 1.22 hereof, without discrimination or preference, with any balance remaining after such distribution among the Lenders to be distributed to whomever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, to the extent that any amounts available for distribution pursuant to this Section 3.2 are attributable to the Bank Guarantied Obligations or Additional Primary Senior Debt Guarantied Obligations that relate to undrawn amounts under the Letters of Credit, such amounts shall be held in a reserve or other account unavailable to the Company or any Subsidiary Guarantor (the “ Reserve Account ”) to be established by the Distribution Agent. Amounts in the Reserve Account shall be used from time to time to pay the applicable Bank Guarantied Obligations or Additional Primary Senior Debt Guarantied Obligations in respect of the Letters of Credit as they become due. Any amounts remaining in the Reserve Account following the expiration or satisfaction in full of the Bank Guarantied Obligations or Additional Primary Senior Debt Guarantied Obligations for which such sums were held in reserve shall be applied against any Guarantied Obligations remaining unpaid in accordance with this Section 3.2. Prior to the appointment of the Distribution Agent, as set forth in Section 3.3(a) hereof, each Receiving Lender shall hold all Shared Payments received by it in trust for the benefit of all Lenders.

For the avoidance of doubt, the parties hereto agree that any payments made by the Company or the Canadian Borrower in respect of the Guarantied Obligations shall not be subject to sharing pursuant to this Agreement.

3.3. Distribution Agent.

(a) Appointment. Each Lender agrees that upon the earlier of (i) receipt by any Lender of a Shared Payment and (ii) the occurrence of a Sharing Event, the Requisite Lenders shall promptly appoint an agent (the “ Distribution Agent ”) to distribute Shared Payments to the Lenders. If no Distribution Agent shall have been appointed by the Requisite Lenders and accepted appointment in the manner hereinafter provided within 30 days after a Sharing Event, the 2004 Agent, the 2009 Agent, any Noteholder, any Additional Primary Senior Debt Agent or any Additional Primary Senior Debt Holder may petition any court of competent jurisdiction for the appointment of the Distribution Agent.

(b) Acceptance of Appointment. The Distribution Agent appointed hereunder shall execute, acknowledge and deliver to the 2004 Agent, the 2009 Agent, each Additional Primary Senior Debt Agent, each Noteholder and each Additional Primary Senior Debt Holder an instrument accepting such appointment and agreeing to be bound by the terms of this Agreement.

(c) Remittance and Distribution. Upon the appointment of the Distribution Agent, each Receiving Lender shall remit any Shared Payment received by it to the Distribution Agent for distribution in accordance with Section 3.2 hereof. Upon receipt of any Shared Payment, the Distribution Agent shall calculate the amount of such Shared Payment distributable to each Lender pursuant to Section 3.2 hereof as of the date the Receiving Lender received such Shared Payment and remit such amount to each Lender, accompanied by computations in reasonable detail showing the manner of calculation of the amounts distributable to each Lender pursuant to Section 3.2 hereof.

3.4. Invalidated Payments.

If any amount distributed by the Distribution Agent to the Lenders in accordance with the provisions of this Agreement is subsequently required to be returned or repaid to any Subsidiary Guarantor or its representatives or successors in interest, whether by court order, settlement or otherwise, each Lender shall, promptly upon its receipt of notice thereof from the Distribution Agent, pay to the Distribution Agent the pro rata portion received by it of such amount for payment to the appropriate Subsidiary Guarantor or its representatives or successors in interest. If any such amounts are subsequently recovered by any Lender from any Subsidiary Guarantor or its representatives or successors in interest, such Lender shall remit such amounts to the Distribution Agent and the Distribution Agent shall redistribute such amounts to the Lenders on the same basis as such amounts were originally distributed. The obligations of the Lenders and the Distribution Agent under this Section 3.4 shall survive the repayment of the Guarantied Obligations and termination of the Bank Guaranty Agreements, the Noteholder Guaranty Agreements and the Additional Primary Senior Debt Guaranty Agreements.

3.5. Receiving Lender to be Subrogated to Rights of Other Lenders.

Any Receiving Lender that has remitted any portion of a Shared Payment received by it to the Distribution Agent as provided in Section 3.3(c) shall, to the extent of such remittance distributable to the other Lenders (the “ Benefitted Lenders ”), be subrogated to the rights of each of such other Lenders to receive payments from the Subsidiary Guarantors applicable to the Guarantied Obligations owed to such other Lenders, until all Guarantied Obligations owed to such Receiving Lender shall be paid in full, and for purposes of such subrogation, no such Shared Payment received by such other Lenders shall, as between the Subsidiary Guarantors or any of them, or their respective creditors (other than the Benefitted Lenders, and the Receiving Lenders), be deemed to be a payment by any of the Subsidiary Guarantors to such other Benefitted Lenders or on account of their Guarantied Obligations, it being understood that the provisions of this Section 3.5 are, and are intended, solely for the purpose of defining the relative rights of the holders of the Guarantied Obligations.

4.	DISTRIBUTION AGENT.

4.1. Distributions and Consents.

In making the distributions to the Lenders provided for in Section 3 hereof, the Distribution Agent may rely upon information available to it or supplied by the 2004 Agent, the 2009 Agent, each Noteholder, each Additional Primary Senior Debt Agent or each Additional Primary Senior Debt Holder to it with respect to the amount of Guarantied Obligations owing to each Lender, and the Distribution Agent shall have no liability to any Lender for actions taken in reliance on such information in the absence of its gross negligence or willful misconduct. The 2004 Agent, the 2009 Agent, each Noteholder, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder hereby agrees, on two business days’ telephonic, telegraphic, telexed or similar notice from the Distribution Agent, to confirm to the Distribution Agent in writing, including by telecopy of a signed confirmation or by telex, the outstanding balance of the Guarantied Obligations, if any (and, if requested by the Distribution Agent, itemized as to principal, interest, fees, premiums and other amounts, if any), owing to the Banks, such Noteholder, such Additional Primary Senior Debt Holder or such Additional Primary Senior Debt Agent and the applicable holders of Additional Primary Senior Debt, as the case may be, as of the date or dates specified in such notice.

4.2. Appointment, Powers of Distribution Agent.

Each of the Lenders and the other holders of any Guarantied Obligations, by its acceptance thereof, hereby appoints and authorizes the Distribution Agent to act as its agent hereunder with such powers as are specifically delegated to the Distribution Agent by the terms of this Agreement, together with such powers as are reasonably incidental thereto. The Distribution Agent shall not have a fiduciary relationship in respect of any Lender by reason of this Agreement.

4.3. Liability.

The Distribution Agent shall have no duties to the Lenders under this Agreement except those expressly set forth herein. Neither the Distribution Agent nor any of its officers, directors, employees or agents shall be liable to any Lender for any action taken or omitted by it or them hereunder or in connection herewith, unless caused by its or their gross negligence or willful misconduct.

4.4. Resignation or Removal of Distribution Agent.

The Distribution Agent may resign and be discharged of its duties hereunder by giving written notice thereof to all holders of the Guarantied Obligations then outstanding. Such resignation shall take effect at such time as a successor distribution agent shall have been appointed. The Distribution Agent may be removed at any time with or without cause by the Requisite Lenders. Upon any such resignation or removal, the Requisite Lenders shall have the right to appoint a successor distribution agent. Upon the acceptance of any appointment as distribution agent hereunder by a successor distribution agent, such successor distribution agent shall thereupon succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Distribution Agent. After any retiring Distribution Agent’s resignation or removal hereunder as Distribution Agent, the provisions of this Section 4.4 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Distribution Agent.

4.5. Employment of Agents and Counsel.

The Distribution Agent may execute any of its duties as Distribution Agent hereunder by or through employees, agents and attorneys-in-fact and shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Distribution Agent shall be entitled to advice of counsel concerning all matters pertaining to the agency hereby created and its duties hereunder.

4.6. Reliance on Documents; Counsel.

The Distribution Agent shall be entitled to rely upon any notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and, with respect to legal matters, upon the opinion of counsel selected by the Distribution Agent, which counsel may be employees of the Distribution Agent.

4.7. Distribution Agent’s Reimbursement and Indemnification.

The Company shall reimburse and indemnify the Distribution Agent for expenses incurred by the Distribution Agent on behalf of the Lenders, in connection with the execution, delivery, administration and enforcement of this Agreement and for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Distribution Agent in any way relating to or arising out of this Agreement or any other document delivered in connection herewith or the transactions contemplated hereby, or the enforcement of any of the terms hereof, provided that the Company shall not be liable for any of the foregoing to the extent they arise from the gross negligence or willful misconduct of the Distribution Agent. The obligations of the Company under this Section 4.7 shall survive payment of the Guarantied Obligations and termination of this Agreement.

4.8. Rights as Lender.

In the event the Distribution Agent, in its individual capacity, is a Lender, the Distribution Agent shall have the same rights and powers hereunder in such capacity as any Lender and may exercise the same as though it were not the Distribution Agent, and the term “Lender” or “Lenders” shall, at any time when the Distribution Agent is a Lender, unless the context otherwise indicates, include the Distribution Agent in its individual capacity. The Distribution Agent in its individual capacity may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement, with the Company or any of its Subsidiaries (including, without limitation, the Subsidiary Guarantors) in which the Company or such Subsidiary is permitted to participate with any other Person. The Distribution Agent, in its individual capacity, is not obligated to be a Lender.

5.	ADDITIONAL GUARANTIES; LIENS AND SECURITY INTERESTS.

5.1. Agent and Banks.

(a) The 2004 Agent, on behalf of the 2004 Banks, agrees that, without the consent in writing by the Majority Noteholders, the Majority 2009 Banks and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2004 Bank Guarantied Obligation without also securing the Noteholders, the 2009 Agent, the 2009 Banks, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a

pari passu basis and subject to an intercreditor agreement acceptable to the Majority Noteholders, Majority 2009 Banks and the Majority Additional Primary Senior Debt Holders, or (ii) except for the obligations of the Company, the Canadian Borrower or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2004 Bank Guarantied Obligations.

(b) The 2009 Agent, on behalf of the 2009 Banks, agrees that, without the consent in writing by the Majority Noteholders, the Majority 2004 Banks and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2009 Bank Guarantied Obligation without also securing the Noteholders, the 2004 Agent, the 2004 Banks, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority Noteholders, Majority 2004 Banks and the Majority Additional Primary Senior Debt Holders, or (ii) except for the obligations of the Company, the Canadian Borrower or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2009 Bank Guarantied Obligations.

5.2. 2000 Noteholders.

Each 2000 Noteholder agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2000 Noteholder Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2004 Noteholders, the 2007 Noteholders, the 2008 Noteholders, the 2010 Noteholders, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2000 Noteholder Guarantied Obligations.

5.3. 2004 Noteholders.

Each 2004 Noteholder agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2004 Noteholder Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2000 Noteholders, the 2007 Noteholders, the 2008 Noteholders, the 2010 Noteholders, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2004 Noteholder Guarantied Obligations.

5.4. 2007 Noteholders.

Each 2007 Noteholder agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2007 Noteholder Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2000 Noteholders, the 2004 Noteholders, the 2008 Noteholders, the 2010 Noteholders, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders, or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2007 Noteholder Guarantied Obligations.

5.5. 2008 Noteholders.

Each 2008 Noteholder agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2008 Noteholder Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders, the 2010 Noteholders, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders, or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2008 Noteholder Guarantied Obligations.

5.6. 2010 Noteholders.

Each 2010 Noteholder agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders and the Majority Additional Primary Senior Debt Holders, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any 2010 Noteholder Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders, the 2008 Noteholders, the Additional Primary Senior Debt Agents and the Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders and the Majority Additional Primary Senior Debt Holders, or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the 2010 Noteholder Guarantied Obligations.

5.7. Additional Primary Senior Debt Holders.

With respect to each Additional Primary Senior Debt Agreement, each Additional Primary Senior Debt Holder or Additional Primary Senior Debt Agent, as applicable, agrees that, without the consent in writing by the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders under each other Additional Primary Senior Debt Agreement, it will not (i) take or receive a Lien upon any of the property or assets of the Company or any Subsidiary Guarantor as security for the payment of any Additional Primary Senior Debt Guarantied Obligation without also securing the 2004 Agent and the 2004 Banks, the 2009 Agent and the 2009 Banks, the 2000 Noteholders, the 2004 Noteholders, the 2007 Noteholders, the 2008 Noteholders, the 2010 Noteholders, all other Additional Primary Senior Debt Agents and all other Additional Primary Senior Debt Holders on a pari passu basis and subject to an intercreditor agreement acceptable to the Majority 2004 Banks, the Majority 2009 Banks, the Majority 2000 Noteholders, the Majority 2004 Noteholders, the Majority 2007 Noteholders, the Majority 2008 Noteholders, the Majority 2010 Noteholders and the Majority Additional Primary Senior Debt Holders under each other Additional Primary Senior Debt Agreement, or (ii) except for the obligations of the Company or any Subsidiary Guarantor, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the Additional Primary Senior Debt Guarantied Obligations.

5.8. No Impairment of Rights.

Nothing contained in this Agreement shall affect or impair the right the 2004 Agent, the 2009 Agent, any Bank, any Noteholder, any Additional Primary Senior Debt Agent or any Additional Primary Senior Debt Holder may have under the terms and conditions governing its respective Guarantied Obligations to accelerate and demand repayment of such Guarantied Obligations. The 2004 Agent, on behalf of the 2004 Banks, the 2009 Agent on behalf of the 2009 Banks, each Noteholder, each Additional Primary Senior Debt Agent, on behalf of the applicable holders of Additional Primary Senior Debt, and each Additional Primary Senior Debt Holder retains the right to freely exercise its rights and remedies as a general creditor of the Company and the Subsidiary Guarantors in accordance with applicable law and agreements with the Company and the Subsidiary Guarantors, including, without limitation, the right to file a lawsuit and obtain a judgment therein against the Company and the Subsidiary Guarantors and to enforce such judgment against any assets of the Company and the Subsidiary Guarantors. Subject to the provisions set forth in this Agreement, each Lender and its Affiliates may (without having to account therefore to any Lender), own, sell acquire and hold equity and debt securities of the Company and the Subsidiary Guarantors, lease property and lend money to and generally engage in any kind of business with the Company and the Subsidiary Guarantors, and, subject to the provisions of this Agreement, the Lenders and their Affiliates may accept dividends, interest, principal payments, fees and other consideration from the Lenders for services in connection with this Agreement or otherwise without having to account for the same to the other Lenders.

6.	MISCELLANEOUS.

6.1. Governing Law.

THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF, EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

6.2. Lender Credit Decision.

Each Lender acknowledges that it has, independently and without reliance upon any other Lender and based on the financial statements prepared by Company and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

6.3. Counterparts.

This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one agreement, and shall constitute a binding agreement when executed by each of the parties hereto. A facsimile or other electronic transmission of an executed signature page will have the same effect as the original executed signature page.

6.4. Successors and Assigns.

(a) This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto including any assignees of the Guarantied Obligations. Each of the 2004 Agent (for itself and on behalf of each 2004 Bank), the 2009 Agent (for itself and on behalf of each 2009 Bank), each Noteholder, each Additional Primary Senior Debt Agent (for itself and on behalf of the applicable holders of Additional Primary Senior Debt) and each Additional Primary Senior Debt Holder agrees that none of the 2004 Agent, the 2009 Agent, any Bank, any Noteholder, any Additional Primary Senior Debt Agent, any holder of Additional Primary Senior Debt with respect to which an Additional Primary Senior Debt Agent is a party hereto, or any Additional Primary Senior Debt Holder will assign any of the Guarantied Obligations absent an executed acknowledgment by the assignee thereof to be bound by the terms of this Agreement. With respect to the 2004 Agent or the 2009 Agent (each as administrative agent and not as a 2004 Bank or 2009 Bank, as applicable), any Noteholder, any Additional Primary Senior Debt Agent (as administrative agent or representative and not as a holder of the applicable Additional Primary Senior Debt), or any Additional Primary Senior Debt Holder such acknowledgement shall be in the form of Annex II attached hereto. and with respect to any 2004 Bank, such acknowledgement shall be in the form of the Assignment and Acceptance Agreement substantially in the form of Exhibit G to the 2004 Bank Credit Agreement (as in effect on the date hereof). With respect to each holder of Guarantied Obligations that is not a party hereto, including, without limitation, any 2009 Bank or any holder of Additional Primary Senior Debt, the 2009 Agent or applicable Additional Primary Senior Debt Agent shall require that any assignee of any 2009 Bank Guarantied Obligations or Additional Primary Senior Debt Guaranteed Obligations acknowledges and agrees to be bound by the terms and conditions of this Agreement in connection with acquiring the applicable Guarantied Obligations.

(b) Each Noteholder agrees to give notice to the 2004 Agent, the 2009 Agent, each other Noteholder, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder of any such assignment promptly within five business days

of such assignment and to give copies of such acknowledgments to each other Noteholder, to the 2004 Agent, to the 2009 Agent, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder, provided that the failure to give such notice shall not cause a forfeiture of any rights under this Agreement. The 2004 Agent shall provide notice to the Noteholders, the 2009 Agent, each Additional Primary Senior Debt Agent and the Additional Primary Senior Debt Holders promptly within five business days, in the form of Annex II attached hereto, if at any time the 2004 Agent shall assign its rights as administrative agent (and not as a 2004 Bank) under the 2004 Bank Credit Agreement, provided that the failure to give such notice shall not cause a forfeiture of any rights under this Agreement. The 2009 Agent shall provide notice to the Noteholders, the 2004 Agent, each Additional Primary Senior Debt Agent and the Additional Primary Senior Debt Holders promptly within five business days, in the form of Annex II attached hereto, if at any time the 2009 Agent shall assign its rights as administrative agent (and not as a 2009 Bank) under the 2009 Bank Credit Agreement, provided that the failure to give such notice shall not cause a forfeiture of any rights under this Agreement. Each Additional Primary Senior Debt Holder agrees to give notice to the 2004 Agent, the 2009 Agent, each Noteholder, each Additional Primary Senior Debt Agent and each other Additional Primary Senior Debt Holder of any such assignment promptly within five business days of such assignment and to give copies of such acknowledgments to each Noteholder, the 2004 Agent, the 2009 Agent, each Additional Primary Senior Debt Agent and each other Additional Primary Senior Debt Holder, provided that the failure to give such notice shall not cause a forfeiture of any rights under this Agreement. Each Additional Primary Senior Debt Agent shall provide notice to the Noteholders, the 2004 Agent, the 2009 Agent, each other Additional Primary Senior Debt Agent and the Additional Primary Senior Debt Holders promptly within five business days, in the form of Annex II attached hereto, if at any time such Additional Primary Senior Debt Agent shall assign its rights as administrative agent or representative under the applicable Additional Primary Senior Debt Agreement, provided that the failure to give such notice shall not cause a forfeiture of any rights under this Agreement.

6.5. Amendments.

This Agreement may be amended only in writing executed by the Requisite Lenders, provided that for the avoidance of doubt (a) the 2010 Noteholders may become a party hereto pursuant to the execution of a joinder agreement as contemplated in Section 6.12(a) and (b) holders of Additional Primary Debt may become a party hereto pursuant to the execution of a joinder agreement as contemplated in Section 6.12(b).

6.6. Termination.

This Agreement shall terminate upon the payment in full of all Guarantied Obligations and the termination of each of the Bank Guaranty Agreements, each of the Noteholder Guaranty Agreements and each of the Additional Primary Senior Debt Guaranty Agreements.

6.7. Cooperation.

Each party hereto agrees to cooperate fully with the other parties hereto, in the exercise of its reasonable judgment, to the end that the terms and provisions of this Agreement may be promptly and fully carried out. Each party hereto also agrees, from time to time, to execute and deliver any and all other agreements, documents or instruments and to take such other actions, all as may be reasonably necessary or desirable to effectuate the terms, provisions and the intent of this Agreement.

6.8. No Waiver.

No failure or delay on the part of any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.

6.9. Notices.

All written communications provided for hereunder shall be sent by first class mail or nationwide overnight delivery service, with charges prepaid ( provided that any Notice of Event of Default or Notice of Shared Payment or copy thereof to be sent by the 2004 Agent, the 2009 Agent or a Lender, as the case may be, shall be sent by nationwide overnight delivery service) and (a) if to any Noteholder, addressed to such Noteholder at the address specified in Annex I hereto, or at such other address as such Noteholder shall have specified to the other Noteholders, the 2004 Agent, the 2009 Agent, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder in writing, (b) if to any 2004 Bank or the 2004 Agent addressed to the 2004 Agent (and the 2004 Agent shall forward each such communication to each 2004 Bank) at the address specified in Annex I hereto, or at such other address as the 2004 Agent shall have specified to the Noteholders, the 2009 Agent, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder in writing, (c) if to any 2009 Bank or the 2009 Agent addressed to the 2009 Agent (and the 2009 Agent shall forward each such communication to each 2009 Bank) at the address specified in Annex I hereto, or at such other address as the 2009 Agent shall have specified to the Noteholders, the 2004 Agent, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder in writing, (d) if to any Additional Primary Senior Debt Holder or Additional Primary Senior Debt Agent, addressed to such Additional Primary Senior Debt Holder or Additional Primary Senior Debt Agent at the address specified in the Joinder Agreement executed by such Additional Primary Senior Debt Holder or Additional Primary Senior Debt Agent, or at such other address as such Additional Primary Senior Debt Holder or Additional Primary Senior Debt Agent shall have specified to the other Additional Primary Senior Debt Holders, the other Additional Primary Senior Debt Agents, the 2004 Agent, the 2009 Agent and each Noteholder in writing (e) if to the Distribution Agent, addressed to the Distribution Agent at such address as the Distribution Agent shall have specified to each Noteholder, the 2004 Agent, the 2009 Agent, each Additional Primary Senior Debt Agent and each Additional Primary Senior Debt Holder in writing.

6.10. Third Party Beneficiaries.

No Person, including, without limitation, the Subsidiary Guarantors and the Company, other than the Lenders, the Distribution Agent and their respective successors and assigns, shall have any rights under this Agreement.

6.11. Agent Authority.

(a) The 2004 Agent hereby represents and warrants to the Noteholders and the 2009 Agent that the 2004 Banks have appointed and designated the 2004 Agent as their agent for purposes of this Agreement, and have authorized and directed the 2004 Agent to enter into this Agreement for the benefit of each 2004 Bank and have authorized and directed the 2004 Agent to sign this Agreement, to receive all notices, to take all action with respect to this Agreement and to exercise all rights and powers incidental thereto. The 2004 Agent further represents and warrants to the Noteholders and the 2009 Agent that any and all action taken by the 2004 Agent in connection with this Agreement shall be done as authorized in the 2004 Bank Credit Agreement at the direction of the Required Lenders (as defined in the 2004 Bank Credit Agreement), and the Noteholders and the 2009 Agent shall be entitled to rely upon this representation notwithstanding any transfer at any time of any 2004 Bank’s interest in the 2004 Bank Guarantied Obligations.

(b) The 2009 Agent hereby represents and warrants to the Noteholders and the 2004 Agent that the 2009 Banks have appointed and designated the 2009 Agent as their agent for purposes of this Agreement, and have authorized and directed the 2009 Agent to enter into this Agreement for the benefit of each 2009 Bank and have authorized and directed the 2009 Agent to sign this Agreement, to receive all notices, to take all action with respect to this Agreement and to exercise all rights and powers incidental thereto. The 2009 Agent further represents and warrants to the Noteholders and the 2004 Agent that any and all action taken by the 2009 Agent in connection with this Agreement shall be done as authorized in the 2009 Bank Credit Agreement at the direction of the Required Lenders (as defined in the 2009 Bank Credit Agreement), and the Noteholders and the 2004 Agent shall be entitled to rely upon this representation notwithstanding any transfer at any time of any 2009 Bank’s interest in the 2009 Bank Guarantied Obligations.

6.12. Joining of Additional Primary Senior Debt Holders.

(a) Upon the issuance of the 2010 Senior Notes, each 2010 Noteholder shall become a party hereto by executing a Joinder Agreement in the form of Annex II attached hereto, provided that, at the time of the issuance of the 2010 Senior Notes, the Company shall have furnished to the 2004 Agent, the 2009 Agent and each other Lender a copy of such Joinder Agreement. Upon the execution and delivery of such Joinder Agreement such entity or entities shall be a “2010 Noteholder” and a “Lender”, and the obligations evidenced by the 2010 Note Agreement shall in all cases be considered and have the benefits of “2010 Noteholder Guarantied Obligations”, in each case for all purposes of this Agreement.

(b) Upon the issuance or incurrence of any Additional Primary Debt, each of the lenders, purchasers or investors having entered into documents evidencing such Additional Primary Debt shall (or shall appoint an Additional Primary Senior Debt Agent on its or their behalf to) become a party hereto by executing a Joinder Agreement in the form of Annex II attached hereto, provided that, at the time of the issuance or incurrence of such Additional Primary Debt, the Company shall have furnished to the 2004 Agent, the 2009 Agent, each other Additional Primary Senior Debt Agent, each Noteholder and each other Additional Primary Senior Debt Holder, a copy of such Joinder Agreement and a certificate certifying that the Debt evidenced by such Additional Primary Senior Debt is permitted under the terms of the Note Agreements, the Bank Credit Agreements and the Additional Primary Senior Debt Agreements then in effect and that no Event of Default (or any event that with the giving of notice or passage of time would be an Event of Default) is then in existence. Upon the execution and delivery of such Joinder Agreement such entity or entities shall be an “Additional Primary Senior Debt Agent” or an “Additional Primary Senior Debt Holder”, as applicable, and a “Lender”, and the

obligations which constitute such Additional Primary Debt shall in all cases be considered and have the benefits of “Additional Primary Senior Debt”, in each case for all purposes of this Agreement.

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

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.

NOTEHOLDERS

METROPOLITAN LIFE INSURANCE COMPANY,

as a 2004 Noteholder, a 2007 Noteholder and a 2008 Noteholder

METLIFE INSURANCE COMPANY OF CONNECTICUT,

as a 2004 Noteholder and a 2007 Noteholder

By: Metropolitan Life Insurance Company, its Investment Manager

FIRST METLIFE INVESTORS INSURANCE COMPANY,

as a 2008 Noteholder

By: Metropolitan Life Insurance Company, its Investment Manager

NEW ENGLAND LIFE INSURANCE COMPANY,

as a 2008 Noteholder

By: Metropolitan Life Insurance Company, its Investment Manager


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

(executed by Metropolitan Life Insurance Company (i) as to itself as a 2004 Noteholder, a 2007 Noteholder and a 2008 Noteholder, (ii) as investment manager to MetLife Insurance Company of Connecticut as a 2004 Noteholder, a 2007 Noteholder and a 2008 Noteholder; (iii) as investment manager to First MetLife Investors Insurance Company as a 2008 Noteholder; (iv) as investment manager to New England Life Insurance Company, as a 2008 Noteholder)

[Signature Page to Intercreditor Agreement]


PRIME REINSURANCE COMPANY, INC, as a 2004 Noteholder

By:	Conning, Inc., as Investment Manager

	By:	/s/ John H. DeMallie
	Name:	John H. DeMallie
	Title:	Director

NATIONAL BENEFIT LIFE INSURANCE COMPANY,

as a 2004 Noteholder


By:	Conning, Inc., as Investment Manager

	By:	/s/ John H. DeMallie
	Name:	John H. DeMallie
	Title:	Director

SENIOR HEALTH INSURANCE COMPANY OF PENNSYLVANIA

(FKA CONSECO SENIOR HEALTH INSURANCE COMPANY),

as a 2007 Noteholder


By:	Conning, Inc., as Investment Manager

	By:	/s/ John H. DeMallie
	Name:	John H. DeMallie
	Title:	Director

[Signature Page to Intercreditor Agreement]

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

as a 2004 Noteholder and a 2007 Noteholder


By:		/s/ David S. Quackenbush
Name:		David S. Quackenbush
Title:		Vice President


PRUCO LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:		/s/ David S. Quackenbush
Name:		David S. Quackenbush
Title:		Vice President

[Signature Page to Intercreditor Agreement]

GENWORTH LIFE INSURANCE COMPANY,

as a 2004 Noteholder


By:		/s/ Stephen DeMotto
Name:		Stephen DeMotto
Title:		Investment Officer

[Signature Page to Intercreditor Agreement]

GREAT WESTERN INSURANCE COMPANY,

as a 2004 Noteholder and a 2008 Noteholder


By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

INDUSTRIAL-ALLIANCE PACIFIC LIFE INSURANCE COMPANY

(formerly The North West Life Assurance Company of Canada),

as a 2004 Noteholder


By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President


THE CATHOLIC AID ASSOCIATION, as a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President


TRUSTMARK INSURANCE COMPANY, as a 2004 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

AMERICAN FIDELITY ASSURANCE COMPANY,

as a 2004 Noteholder


By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


THE LAFAYETTE LIFE INSURANCE COMPANY, as a 2004 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Theodore R. Hoxmeier
	Name:	Theodore R. Hoxmeier
	Title:	Vice President


MINNESOTA LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Theodore R. Hoxmeier
	Name:	Theodore R. Hoxmeier
	Title:	Vice President


AMERICAN REPUBLIC INSURANCE COMPANY, as a 2007 Noteholder and a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Theodore R. Hoxmeier
	Name:	Theodore R. Hoxmeier
	Title:	Vice President


BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., as a 2007 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Theodore R. Hoxmeier
	Name:	Theodore R. Hoxmeier
	Title:	Vice President


FORT DEARBORN LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Theodore R. Hoxmeier
	Name:	Theodore R. Hoxmeier
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


COLORADO BANKERS LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

CINCINNATI LIFE INSURANCE COMPANY, as a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

THE MUTUAL SAVINGS LIFE INSURANCE COMPANY, as a 2000 and a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN, as a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

UNITED INSURANCE COMPANY OF AMERICA, as a 2000 and a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ John Leiviska
	Name:	John Leiviska
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


SECURITY NATIONAL LIFE INSURANCE COMPANY, as a 2008 Noteholder

By:	Advantus Capital Management, Inc.

	By:	/s/ Gregory Ortquist
	Name:	Gregory Ortquist
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


PHYSICIANS LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Hartford Investment Management Company,
	Its Investment Manager

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

HARTFORD FIRE INSURANCE COMPANY, as a 2007 Noteholder

By:	Hartford Investment Management Company
	Its Agent and Attorney-in-Fact

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

HARTFORD LIFE INSURANCE COMPANY, as a 2008 Noteholder

By:	Hartford Investment Management Company
	Its Agent and Attorney-in-Fact

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

HARTFORD INSURANCE COMPANY OF ILLINOIS, As a 2008 Noteholder

By:	Hartford Investment Management Company
	Its Agent and Attorney-in-Fact

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


HARTFORD CASUALTY INSURANCE COMPANY, as a 2008 Noteholder

By:	Hartford Investment Management Company
	Its Agent and Attorney-in-Fact

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

HARTFORD LIFE AND ANNUITY INSURANCE COMPANY, as a 2008 Noteholder

By:	Hartford Investment Management Company
	Its Agent and Attorney-in-Fact

	By:	/s/ Ralph D. Witt
	Name:	Ralph D. Witt
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


NATIONWIDE LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:		/s/ Mary Beth Cadle
Name:		Mary Beth Cadle
Title:		Authorized Signatory

[Signature Page to Intercreditor Agreement]


MODERN WOODMEN OF AMERICA, as a 2000 Noteholder, a 2004 Noteholder, a 2007 Noteholder and a 2008 Noteholder

By:		/s/ Douglas A. Pannier
Name:		Douglas A. Pannier
Title:		Portfolio Manager - Private Placements

[Signature Page to Intercreditor Agreement]


NATIONAL GUARDIAN LIFE INSURANCE COMPANY, as a 2007 Noteholder and a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


AMERICAN UNITED LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:		/s/ John Mason
Name:		John Mason
Title:		V.P. Fixed Income Securities


THE STATE LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	American United Life Insurance Company, its Agent

	By:	/s/ John Mason
	Name:	John Mason
	Title:	V.P. Fixed Income Securities

[Signature Page to Intercreditor Agreement]


STATE FARM LIFE INSURANCE COMPANY, as a 2007 Noteholder and a 2008 Noteholder

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

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


STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY, as a 2007 Noteholder and a 2008 Noteholder

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

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

[Signature Page to Intercreditor Agreement]


ALLSTATE LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:		/s/ Mark Cloghessy
Name:		Mark Cloghessy

By:		/s/ Carrie A. Cazolas
Name:		Carrie A. Cazolas
		Authorized Signatories

[Signature Page to Intercreditor Agreement]


MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Babson Capital Management LLC as Investment Adviser

	By:	/s/ Elisabeth A. Perenick
	Name:	Elisabeth A. Perenick
	Title:	Managing Director


C.M. LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:	Babson Capital Management LLC as Investment Sub-Adviser

	By:	/s/ Elisabeth A. Perenick
	Name:	Elisabeth A. Perenick
	Title:	Managing Director

[Signature Page to Intercreditor Agreement]


NEW YORK LIFE INSURANCE COMPANY, as a 2007 Noteholder

By:		/s/ Trinh Nguyen
Name:		Trinh Nguyen
Title:		Corporate Vice President


NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION, as a 2007 Noteholder

By:	New York Life Investment Management LLC, its Investment Manager

	By:	/s/ Trinh Nguyen
	Name:	Trinh Nguyen
	Title:	Corporate Vice President

[Signature Page to Intercreditor Agreement]


AMERICAN GENERAL LIFE INSURANCE COMPANY, as a 2007 Noteholder
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, as a 2007 Noteholder

By:	AIG Asset Management (U.S.) LLC, investment adviser

	By:	/s/ William H. Hasson
	Name:	William H. Hasson
	Title:	Managing Director

[Signature Page to Intercreditor Agreement]


MONY LIFE INSURANCE COMPANY OF AMERICA, as a 2007 Noteholder

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


AXA EQUITABLE LIFE INSURANCE COMPANY, as a 2007 Noteholder and a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


BANKERS LIFE AND CASUALTY COMPANY, as a 2007 Noteholder
CONSECO LIFE INSURANCE COMPANY, as a 2007 Noteholder
CONSECO HEALTH INSURANCE COMPANY, as a 2007 Noteholder

By:	40\|86 Advisors, Inc. acting as Investment Advisor

	By:	/s/ Timothy L. Powell
	Name:	Timothy L. Powell
	Title:	Vice President

[Signature Page to Intercreditor Agreement]


ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA,
as a 2007 Noteholder and a 2008 Noteholder

By:	Allianz of America, Inc. as the authorized signatory and investment manager

	By:	/s/ Gary Brown
	Name:	Gary Brown
	Title:	Chief Investment Officer - Fixed Income

[Signature Page to Intercreditor Agreement]


COUNTRY LIFE INSURANCE COMPANY,
as a 2007 Noteholder and a 2008 Noteholder

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


COUNTRY MUTUAL INSURANCE COMPANY,
as a 2008 Noteholder

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


COTTON STATES LIFE INSURANCE,
as a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


STATE OF WISCONSIN INVESTMENT BOARD,
as a 2007 Noteholder

By:		/s/ Christopher P. Prestigiacomo
Name:		Christopher P. Prestigiacomo
Title:		Portfolio Manager

[Signature Page to Intercreditor Agreement]


NATIONAL LIFE INSURANCE COMPANY,
as a 2007 Noteholder

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

[Signature Page to Intercreditor Agreement]


THE UNION CENTRAL LIFE INSURANCE COMPANY,
as a 2007 Noteholder and a 2008 Noteholder

By:	Summit Investment Advisors, Inc., as Agent

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

AMERITAS LIFE INSURANCE CORP.,
as a 2007 Noteholder and a 2008 Noteholder

By:	Summit Investment Advisors, Inc., as Agent

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

ACACIA LIFE INSURANCE COMPANY,
as a 2007 Noteholder and a 2008 Noteholder

By:	Summit Investment Advisors, Inc., as Agent

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

[Signature Page to Intercreditor Agreement]


TRAVELERS CASUALTY AND SURETY COMPANY,
as a 2007 Noteholder

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

THE TRAVELERS INDEMNITY COMPANY,
as a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
as a 2008 Noteholder

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

THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY FOR ITS GROUP ANNUITY SEPARATE ACCOUNT,
as a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


UNUM LIFE INSURANCE COMPANY OF AMERICA,
as a 2008 Noteholder

By:	Provident Investment Management, LLC
Its:	Agent

	By:	/s/ Sue Munson
	Name:	Sue Munson
	Title:	Managing Director

COLONIAL LIFE & ACCIDENT INSURANCE COMPANY,
as a 2008 Noteholder

By:	Provident Investment Management, LLC
Its:	Agent

	By:	/s/ Sue Munson
	Name:	Sue Munson
	Title:	Managing Director

[Signature Page to Intercreditor Agreement]


THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, as a 2008 Noteholder

By:		/s/ Barry Scheinholtz
Name:		Barry Scheinholtz
Title:		Senior Director

[Signature Page to Intercreditor Agreement]


LIFE INSURANCE COMPANY OF THE SOUTHWEST, as a 2008 Noteholder

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

[Signature Page to Intercreditor Agreement]


STANDARD INSURANCE COMPANY, as a 2008 Noteholder

By:		/s/ Floyd Chadee
Name:		Floyd Chadee
Title:		Senior Vice President & Chief Financial Officer

[Signature Page to Intercreditor Agreement]

BANKS


KEYBANK NATIONAL ASSOCIATION, as 2004 Agent and on behalf of the 2004 Banks

By:		/s/ Marianne T. Meil
Name:		Marianne T. Meil
Title:		Senior Vice President

BANK OF MONTREAL, as 2009 Agent and on behalf of the 2009 Banks

By:		/s/ Betzaida Erdelyi
Name:		Betzaida Erdelyi
Title:		Managing Director

[Signature Page to Intercreditor Agreement]

The Company agrees to perform its obligations under Section 4.7 and acknowledges that no consent or other action by it is necessary for any action to be taken under, or for any amendment of, this Intercreditor Agreement, including, without limitation, the appointment of the Distribution Agent or a successor distribution agent, except that its consent shall be necessary for any amendment to Section 4.7.

THE J. M. SMUCKER COMPANY



By:		/s/ Debra A. Marthey
Name:		Debra A. Marthey
Title:		Treasurer

[Signature Page to Intercreditor Agreement]

Annex I

Addresses for Notices

2000 NOTEHOLDERS:

The Mutual Savings Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

United Insurance Company of America

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

2004 NOTEHOLDERS:

Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

MetLife Insurance Company of Connecticut

c/o Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Prime Reinsurance Company, Inc.

c/o Conning, Inc.

One Financial Plaza 13 ^th Floor

Hartford, CT 06103-2627

National Benefit Life Insurance Company

c/o Conning, Inc.

One Financial Plaza 13 ^th Floor

Hartford, CT 06103-2627

The Prudential Insurance Company of America

c/o Prudential Capital Group

Two Prudential Plaza, Suite 5600

180 North Stetson Avenue

Chicago, IL 60601

Annex I-1

Genworth Life Insurance Company

c/o Genworth Financial

601 Union Street, Suite 2200

Seattle, WA 98101

Trustmark Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

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

Great Western Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Eastern Life and Health Insurance Company

c/o Fulton Financial Advisors

One Penn Square

P.O. Box 3215

Lancaster, PA 17604-3215

Modern Woodmen of America

1701 First Avenue

Rock Island, IL 61201

2007 NOTEHOLDERS:

Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Annex I-2

MetLife Insurance Company of Connecticut

c/o Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

The Prudential Insurance Company of America

c/o Prudential Capital Group

Two Prudential Plaza

180 North Stetson Street, Suite 5600

Chicago, IL 60601-6716

Pruco Life Insurance Company

c/o Prudential Capital Group

Two Prudential Plaza

180 North Stetson Street, Suite 5600

Chicago, IL 60601-6716

State Farm Life Insurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

State Farm Life and Accident Assurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Allstate Life Insurance Company

c/o Allstate Investments LLC

Private Placements Department

3075 Sanders Road, STE G3A

Northbrook, IL 60062-7127

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

PO Box 15189

Springfield, MA 01115-5189

C.M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

PO Box 15189

Springfield, MA 01115-5189

New York Life Insurance Company

c/o New York Life Investment Management LLC

51 Madison Avenue

New York, New York 10010

Annex I-3

New York Life Insurance and Annuity Corporation

c/o New York Life Investment Management LLC

51 Madison Avenue

New York, New York 10010-1603

American General Life Insurance Company

c/o AIG Global Investment Group

2929 Allen Parkway, A36-04

Houston, Texas 77019-2155

American General Life and Accident Insurance Company

c/o AIG Global Investment Group

2929 Allen Parkway, A36-04

Houston, Texas 77019-2155

MONY Life Insurance Company of America

C/O AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

Horizon Blue Cross Blue Shield of New Jersey

C/o AllianceBernstein LP

1345 Avenue of the Americas, 38 ^th Floor

New York, NY 10105

Annex I-4

Hartford Fire Insurance Company

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

Physicians Life Insurance Company

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

Nationwide Life Insurance Company

One Nationwide Plaza (1-33-07)

Columbus, Ohio 43215-2220

Bankers Life and Casualty Company

c/o 40|86 Advisors, Inc.

535 N. College Drive

Carmel, IN 46032

Conseco Life Insurance Company

c/o 40|86 Advisors, Inc.

535 N. College Drive

Carmel, IN 46032

Conseco Health Insurance Company

c/o 40|86 Advisors, Inc.

535 N. College Drive

Carmel, IN 46032

Senior Health Insurance Company of Pennsylvania

c/o Conning, Inc.

One Financial Plaza 13 ^th Floor

Hartford, CT 06103-2627

Minnesota Life Insurance Company

400 Robert Street North

St. Paul, MN 55101

American Republic Insurance Company

C/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, MN 55101

Annex I-5

Blue Cross and Blue Shield of Florida, Inc.

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Fort Dearborn Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Colorado Bankers Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Allianz Life Insurance Company of North America

c/o Allianz of America, Inc.

55 Greens Farms Road

P.O. Box 5160

Westport, Connecticut 06881-5160

Country Life Insurance Company

1705 N Towanda Avenue

Bloomington, IL 61702

American United Life Insurance Company

Attn: Mike Bullock, Securities

One American Square

Indianapolis, IN 46206

The State Life Insurance Company

c/o America United Life Insurance Company

One American Square

Post Office Box 368

Indianapolis, IN 46206

State of Wisconsin Investment Board

121 East Wilson Street

P. O. Box 7842

Madison, Wisconsin 53707-7842

National Life Insurance Company

One National Life Drive

Montpelier, VT 05604

The Union Central Life Insurance Company

c/o Ameritas Investment Advisors Inc.

390 North Cotner Blvd.

Lincoln, NE 68505

Annex I-6

Ameritas Life Insurance Corp.

c/o Ameritas Investment Advisors Inc.

390 North Cotner Blvd.

Lincoln, NE 68505

Acacia Life Insurance Company

c/o Ameritas Investment Advisors Inc.

390 North Cotner Blvd.

Lincoln, NE 68505

Travelers Casualty and Surety Company

c/o The Travelers Companies, Inc.

9275-NB11B

385 Washington Street

St. Paul, MN 55102-1396

Modern Woodmen of America

1701 First Avenue

Rock Island, IL 61201

National Guardian Life Insurance Company

Two E Gilman St

Madison, WI 53703

2008 NOTEHOLDERS :

Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

New England Life Insurance Company

c/o Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

Annex I-7

First MetLife Investors Insurance Company

c/o Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

The Northwestern Mutual Life Insurance Company

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attn: Securities Department

Fax: 414-665-7124

The Northwestern Mutual Life Insurance Company for its

Group Annuity Separate Account

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attn: Securities Department

Fax: 414-665-7124

Jackson National Life Insurance Company

c/o PPM America, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606-1228

Attn: Private Placements – Luke Stifflear

Tel: (312) 634-2597

Fax: (312) 634-0054

Hartford Life Insurance Company

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

Hartford Insurance Company of Illinois

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

Annex I-8

Hartford Casualty Insurance Company

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

Hartford Life and Annuity Insurance Company

c/o Hartford Investment Management Company

c/o Investment Department – Private Placements

55 Farmington Avenue

Hartford, CT 06105

PrivatePlacement.Himco@Himco.com

Fax: 860-297-8884

State Farm Life Insurance Company

Investment Accounting Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

State Farm Life and Accident Assurance Company

Investment Accounting Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

UNUM Life Insurance Company of America

c/o Provident Investment Management, LLC

Private Placements

One Fountain Square

Chattanooga, Tennessee 37402

Fax: (423) 294-3351

Colonial Life & Accident Insurance Company

c/o Provident Investment Management, LLC

Private Placements

One Fountain Square

Chattanooga, Tennessee 37402

Fax: (423) 294-3351

ING Life Insurance and Annuity Company

c/o ING Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: (770) 690-5057

Annex I-9

ING USA Annuity and Life Insurance Company

c/o ING Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: (770) 690-5057

ReliaStar Life Insurance Company

c/o ING Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: (770) 690-5057

Security Life of Denver Insurance Company

c/o ING Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: (770) 690-5057

Cincinnati Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

The Mutual Savings Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

Farm Bureau Life Insurance Company of Michigan

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

Great Western Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

Annex I-10

The Catholic Aid Association

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

American Republic Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

United Insurance Company of America

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

Security National Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, MN 55101

Attn: Client Administrator

Fax: (651) 223-5029

AXA Equitable Life Insurance Company

c/o AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

Attention: Monique Meany

Annex I-11

Allianz Life Insurance Company of North America

c/o Allianz of America, Inc.

Attn: Private Placements

55 Greens Farms Road

P.O. Box 5160

Westport, Connecticut 06881-5160

Fax: 203-221-8539

E-mail: brian.landry@azoa.com

The Guardian Life Insurance Company of America

7 Hanover Square

New York, NY 10004-2616

Investment Dept, 20-D

Attn: Barry Scheinholtz

Fax: 212-919-2658/2656

The Travelers Indemnity Company

c/o The Travelers Companies, Inc.

9275-NB11B

385 Washington Street

St. Paul, MN 55102-1396

Modern Woodmen of America

Attn: Investment Department

1701 First Avenue

Rock Island, IL 61201

Email: investments@modern-woodmen.org

Fax: (309) 793-5574

The Union Central Life Insurance Company

c/o Summit Investment Partners

390 North Cotner Blvd.

Lincoln, NE 68505

Fax: 402-467-6970

Ameritas Life Insurance Corp.

c/o Summit Investment Partners

390 North Cotner Blvd.

Lincoln, NE 68505

Fax: 402-467-6970

Acacia Life Insurance Company

c/o Summit Investment Partners

390 North Cotner Blvd.

Lincoln, NE 68505

Fax: 402-467-6970

Annex I-12

Life Insurance Company of the Southwest

c/o National Life Insurance Company

One National Life Drive

Montpelier, VT 05604

Attn: Private Placements

Fax: 802-223-9332

Standard Insurance Company

1100 SW Sixth Avenue

Portland, OR 97204

Attn: Kim Ceserani

Fax: (971) 321-5890

Country Life Insurance Company

Attn: Investments

1705 N Towanda Avenue

Bloomington, IL 61702

Fax: 309-821-6301

Country Mutual Insurance Company

Attn: Investments

1705 N Towanda Avenue

Bloomington, IL 61702

Fax: 309-821-6301

Cotton States Life Insurance

Attn: Investments

1705 N Towanda Avenue

Bloomington, IL 61702

Fax: 309-821-6301

National Guardian Life Insurance Company

Two E Gilman St.

Madison, WI 53703

Attn: Investment Dept.

BANKS :

KeyBank National Association, as 2004 Agent

127 Public Square

Cleveland, OH 44114

Bank of Montreal, as 2009 Agent

115 South LaSalle Street C

hicago Illinois 60603

Attn Betsy Erdelyi

Tel: 312-461-4049

Fax: 312-765-1030

Annex I-13

Annex II

ACKNOWLEDGEMENT AND JOINDER AGREEMENT

Reference is made to the Third Amended and Restated Intercreditor Agreement dated as of June 11, 2010 (the “ Intercreditor Agreement ”), among the Noteholders, the 2004 Agent, the 2009 Agent, the Additional Primary Senior Debt Holders and the Additional Primary Senior Debt Agents. Capitalized terms used herein have the respective meanings specified in the Intercreditor Agreement.

By its signature below, the undersigned [, a holder of one or more 2000 Senior Notes] [, a holder of one or more 2004 Senior Notes] [, a holder of one or more 2007 Senior Notes] [, a holder of one or more 2008 Senior Notes] [, a holder of one or more 2010 Senior Notes] [, the 2004 Agent] [, the 2009 Agent] [, an Additional Primary Senior Debt Agent] [, a holder of Additional Primary Debt] referred to in the Intercreditor Agreement hereby agrees to be a party to, and bound by the terms and conditions of, the Intercreditor Agreement [and to require the holders of the applicable Additional Primary Debt for which the undersigned serves as the Additional Primary Senior Debt Agent to be bound (and for any assignee thereof to be bound) by the terms and conditions of the Intercreditor Agreement] ¹ as if it had been an original signatory party thereto (in the capacity as a Lender). Set forth below is the address for notices for the undersigned that is to be set forth in Annex I to the Intercreditor Agreement.

[The undersigned hereby represents and warrants to the Noteholders, the 2004 Agent, the 2009 Agent[, each Additional Primary Senior Debt Holder and each other Additional Primary Senior Debt Agent] that the [ ] have appointed and designated it as their agent for purposes of this Acknowledgment and Joinder Agreement and the Intercreditor Agreement, and have authorized and directed it to enter into this Acknowledgment and Joinder Agreement for the benefit of each [ ] and have authorized and directed it to sign this Acknowledgment and Joinder Agreement, to receive all notices, to take all action with respect to this Acknowledgment and Joinder Agreement and the Intercreditor Agreement and to exercise all rights and powers incidental hereto and thereto. The undersigned further represents and warrants to the Noteholders, the 2004 Agent, the 2009 Agent[, each Additional Primary Senior Debt Holder and each other Additional Primary Senior Debt Agent] that any and all action taken by it in connection with this Acknowledgment and Joinder Agreement and the Intercreditor Agreement shall be done as authorized in the Additional Primary Senior Debt Agreement under which such Additional Primary Debt was issued, and the Noteholders, the 2004 Agent, the 2009 Agent[, each Additional Primary Senior Debt Holder and each other Additional Primary Senior Debt Agent] shall be entitled to rely upon this representation notwithstanding any transfer at any time of any interest in the Additional Primary Senior Debt Guarantied Obligations.] ²


[NAME]

By:
Name:
Title:



Notice Address:

¹	To be included if signed by an Additional Primary Senior Debt Agent.

²	To be included if signed by an Additional Primary Senior Debt Agent.

Annex II - 1

Exhibit 5.1

[CALFEE, HALTER & GRISWOLD LLP LETTERHEAD]

October 13, 2011

The J. M. Smucker Company

One Strawberry Lane

Orrville, Ohio 44667-0280

We have acted as counsel for The J. M. Smucker Company (the “Company”) in connection with the preparation of a Registration Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the shelf registration for possible offer and sale from time to time of an indeterminate amount of the following securities (collectively, the “Securities”):

(i) debt securities of the Company (the “Debt Securities”);

(ii) guarantees relating to the Debt Securities (the “Guarantees”) of J.M. Smucker LLC and The Folgers Coffee Company (collectively, the “Registrant Guarantors”);

(iii) common shares, without par value, of the Company (the “Common Shares”);

(iv) serial preferred shares, without par value, of the Company (the “Preferred Shares”); and

(v) warrants to purchase Debt Securities, Common Shares or Preferred Shares (collectively, the “Warrants”).

The Securities may be offered separately or as part of units with other Securities, in separate series, in amounts, at prices, and on terms to be set forth in the prospectus and one or more supplements to the prospectus (collectively, the “Prospectus”) constituting a part of the Registration Statement, and in the Registration Statement.

The Debt Securities and any Guarantees relating thereto may be issued pursuant to an indenture (the “Indenture”) between the Company and a trustee to be named in such Indenture, and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Warrants are to be issued under one or more warrant

The J.M. Smucker Company

October 13, 2011

Page 2

agreements (the “Warrant Agreements”), to be entered into by the Company and one or more warrant agents to be named by the Company.

We have examined or are otherwise familiar with the Articles of Incorporation, as amended, of the Company, the Regulations, as amended, of the Company, the similar organizational documents of the Registrant Guarantors, the Registration Statement, such records of the corporate action taken and to be taken in connection with the issuance of the Securities as have occurred as of the date hereof, and such other documents, records and instruments as we have deemed necessary or appropriate for the purposes of this opinion.

Based upon the foregoing, we are of the opinion that:

(i) the Common Shares, when authorized and sold as contemplated in the Registration Statement and the underwriting agreement applicable thereto, will be validly issued by the Company and will be fully paid and non-assessable;

(ii) the Preferred Shares, when authorized and sold as contemplated in the Registration Statement and the underwriting agreement applicable thereto, will be validly issued by the Company and will be fully paid and non-assessable;

(iii) the Debt Securities, when authorized and sold as contemplated in the Registration Statement, the Indenture and the underwriting agreement applicable thereto, will be validly issued by the Company and will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity;

(iv) the Guarantees, when authorized and sold as contemplated in the Registration Statement, the Indenture and the underwriting agreement applicable thereto, will be validly issued by the Registrant Guarantors and will constitute valid and legally binding obligations of the Registrant Guarantors, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity; and

(v) the Warrants, when authorized and sold as contemplated in the Registration Statement and the Warrant Agreement applicable thereto, will be validly issued by the Company.

The foregoing opinions assume that, at the time of the authentication or delivery of the Securities, (i) the Registration Statement shall have become effective under the Securities Act and no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect; (ii) the issuance, sale, amount and terms of the

The J.M. Smucker Company

October 13, 2011

Page 3

Securities to be offered from time to time will be duly authorized and established by proper actions of the Board of Directors of the Company, a duly authorized committee thereof or, with regard to the Guarantees, by proper actions of the Board of Directors, a duly authorized committee thereof, or the sole member, as the case may be, of the Registrant Guarantors, in a manner that does not violate any law, government or court-imposed order or restriction or agreement or instrument then binding on the Company or the Registrant Guarantors, as the case may be; (iii) one or more Prospectuses will be prepared and filed with the Commission describing the Securities offered thereby; (iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws and delivered against payment of valid consideration therefor and in accordance with the terms of the applicable resolutions of the Board of Directors of the Company, a duly authorized committee thereof or, with regard to the Guarantees, in accordance with applicable resolutions of the Board of Directors, a duly authorized committee thereof, or the sole member, as the case may be, of the Registrant Guarantors, authorizing such sale and any applicable underwriting agreement and in the manner contemplated in the Registration Statement and the applicable Prospectuses; (v) the Indenture applicable to any issuance of Debt Securities and any Guarantees relating thereto shall have been duly authorized, executed and delivered by the Company, the Registrant Guarantors and the trustee named therein, and shall contain such terms as shall have been authorized by the Board of Directors of the Company or a duly authorized committee thereof in respect of the Debt Securities, and by the Board of Directors, a duly authorized committee thereof, or the sole member, as the case may be, of the Registrant Guarantors in respect of the Guarantees; (vi) the Indenture applicable to any issuance of Debt Securities and any Guarantees relating thereto will be duly qualified under the Trust Indenture Act and will continue to be so qualified, and the applicable trustee will be duly eligible to serve as trustee; (vii) any Debt Securities will be duly authenticated by the trustee named in the applicable Indenture; (viii) any Warrant Agreement shall have been duly authorized, executed and delivered by all parties thereto other than the Company; (ix) any Securities issuable upon conversion, exchange or exercise of any Security being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise; (x) with respect to Common Shares or Preferred Shares offered and Common Shares or Preferred Shares issuable upon conversion of any Security, there will be sufficient Common Shares or Preferred Shares authorized under the Articles of Incorporation of the Company, as restated and/or amended, and not otherwise reserved for issuance; and (xi) the Company will be validly existing as a corporation and in good standing under the laws of the State of Ohio.

We have also assumed that there will not have occurred, prior to the date of issuance of the Securities, any change in law affecting the validity or enforceability of such Securities and that at the time of the issuance and sale of the Securities, the Board of Directors of the Company (or any committee thereof acting pursuant to authority properly delegated to such committee by the Board of Directors) or the Board of Directors (or any committee thereof acting pursuant to authority properly delegated to such committee by such Board of Directors) or the sole member, as the case may be, of any Registrant

The J.M. Smucker Company

October 13, 2011

Page 4

Guarantor shall not have taken any action to rescind or otherwise reduce its prior authorization of the issuance of the Securities.

We are attorneys licensed to practice law in the State of Ohio. The opinions expressed herein are limited solely to the Federal Law of the United States of America, the laws of the State of Ohio and the General Corporation Law of the State of Delaware. We express no opinion as to the effect or applicability of the laws of any other jurisdiction except to the extent hereinafter set forth. Further, we note that the Indenture under which the Debt Securities may be issued and the Guarantees relating thereto will be governed by the laws of the State of New York. Accordingly, in rendering the opinions expressed in numbered paragraphs (iii) and (iv) above with respect to the Debt Securities and the Guarantees relating thereto, to the extent that the laws of the State of New York govern the matters as to which such opinions are expressed, we have relied upon the opinion of Harter Secrest & Emery LLP. In addition, in rendering the opinion set forth in numbered paragraphs (iii) and (iv), we express no opinion as to (i) the right to collect any payment to the extent that such payment constitutes a penalty, premium, forfeiture or late payment charge, (ii) whether the exercise of a remedy limits or precludes the exercise of another remedy, (iii) the right to intervene in any legal proceeding pursuant to the Indenture, (iv) the extent that any delay contemplated by the Indenture exceeds the applicable statute of limitations, or (iv) any purported right of indemnification or exculpation with respect to illegal acts, intentional torts, willful conduct, or violations of securities laws.

We consent to the filing of this opinion with the Registration Statement and to the use of our name therein under the caption “Legal Matters.” Such consent, however, is not an admission that we are in the category of persons whose consent is required under Section 7 of the Act.

Very truly yours,

/s/ Calfee, Halter & Griswold LLP

CALFEE, HALTER & GRISWOLD LLP

Exhibit 5.2

[HARTER SECREST & EMERY LLP LETTERHEAD]

October 13, 2011

Calfee, Halter & Griswold LLP

1400 KeyBank Center

800 Superior Avenue

Cleveland, Ohio 44114-2688

Re: The J. M. Smucker Company

Indenture, Securities and Guarantees

Ladies and Gentlemen:

As counsel to The J. M. Smucker Company (the “Company”), you have asked us to deliver to you this opinion as to the specified matters of New York law relating to that certain Indenture (the “Indenture”) to be entered into by and between the Company, as issuer, and U.S. Bank National Association, as trustee (the “Trustee”). A form of the Indenture has been included as an exhibit to the Company’s Registration Statement on Form S-3 filed with the Securities and Exchange Commission on even date herewith. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Indenture.

The Indenture, when executed and delivered by the Company and the Trustee, and the Securities, when issued in accordance with the Indenture, will be the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

The Subsidiary guarantees of the Securities, if any, when issued in accordance with the Indenture, will be the valid and binding obligations of each such guaranteeing Subsidiary, enforceable against such guaranteeing Subsidiary in accordance with their terms.

The foregoing opinions are subject to (i) bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar laws affecting the rights and remedies of creditors generally, and (ii) constitutional and public policy limitations and general principles of equity. In addition, we express no opinion as to (a) the right to collect any payment to the extent that such payment constitutes a penalty, premium, forfeiture, or late payment charge, (b) whether the exercise of a remedy limits or precludes the exercise of another remedy, (c) any purported right of indemnification or exculpation with respect to illegal acts, intentional torts, willful conduct, or violations of securities laws, (d) the right to intervene in any legal proceeding, (e) the extent that

Calfee, Halter & Griswold, LLP

October 13, 2011

Page 2

any time period exceeds the applicable statute of limitations, or (f) the effectiveness and enforceability of waivers of guarantor defenses, setoff, or statutory, regulatory or constitutional rights.

The foregoing opinions are based solely on a review of generally applicable laws of New York and not on the basis of any review of any orders, decrees, judgments or other determinations that may be specifically applicable to the Company.

For the purpose of rendering the foregoing opinions, we have examined only (i) the forms of the Indenture and proposed Supplemental Indenture, and (ii) your opinion of counsel, dated the date hereof (the “Calfee Opinion”). Other than our review of the foregoing documents, we have not reviewed any other documents or made any independent investigation whatsoever for the purposes of rendering the foregoing opinions, and we make no representation as to the scope or sufficiency of our document review for your purposes. With your permission, the foregoing opinions are qualified in all respects by the scope of such document examination.

In rendering the foregoing opinions, we have made such examination of New York laws as we have deemed relevant for the purposes hereof. We have not participated in any aspect of the negotiation, documentation or consummation of the transactions underlying or contemplated by, or entered into concurrently with, the Indenture or the Securities and we have not consulted with the directors, officers or management of the Company. Accordingly, we have, with your permission, assumed and relied, without independent investigation, upon, inter alia , (i) the due formation, existence and good standing of, and the truth, accuracy and completeness of the representations and acknowledgements contained in the Indenture and made by the respective parties thereto, (ii) the due authorization and execution of the Indenture by the respective parties thereto, (iii) the valid delivery of the Indenture by the respective parties thereto, (iv) the due authorization and execution of the Securities by the Company in accordance with the terms of the Indenture, (v) the valid delivery of the Securities by the Company in accordance with the terms of the Indenture, (vi) the authentication of the Securities by the Trustee in accordance with the terms of the Indenture, (vii) the full payment of the consideration for the Securities, (viii) the legality, validity and binding effect of the Indenture with respect to the Trustee, (ix) any action taken by any Person in connection with the performance or enforcement of the Indenture or the Securities to which it is a party being lawful, commercially reasonable and taken in good faith and such Person performing its obligations, or seeking to enforce its rights, under the Indenture and the only in circumstances and in a manner in which it is equitable and commercially reasonable to do so and otherwise in accordance with applicable law, (x) the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the original documents of all documents submitted to us as reproduced copies, and the authenticity of all such latter documents, (xi) each Supplemental Indenture issued pursuant to Article 9 of the Indenture and any Subsidiary guarantee issued pursuant to such Supplemental

Calfee, Halter & Griswold, LLP

October 13, 2011

Page 3

Indenture, if any, being duly authorized, executed and delivered by all parties thereto in accordance with the Indenture, (xii) each Supplemental Indenture being in the form previously reviewed by us in connection with our review of the Indenture; (xiii) each of the guaranteeing Subsidiaries that is a party to any Supplemental Indenture receiving direct and indirect benefits from the financing arrangements contemplated by such Supplemental Indenture, and (xiv) the accuracy of the matters addressed in the Calfee Opinion.

We express no opinion with respect to compliance by the Company or any other party with the disclosure or anti-fraud requirements of the New York “blue sky” laws or the effect of any non-compliance with such requirements on the enforceability of the Indenture or the Securities.

We express no opinion herein as to any of the transactions underlying or contemplated by the Indenture or the Securities. Without limiting the generality of the foregoing, we express no opinion with respect to the financial terms of those transactions, the fairness of those terms to any person or entity, or the satisfaction of any fiduciary duties that may exist.

We express no opinion as to the law of any jurisdiction other than the law of the State of New York.

This opinion speaks only as of the date of its issue and may not be relied upon to the extent subsequent legislative actions or judicial decisions cause changes in the law which would affect the validity of this opinion if given at that time. We assume no responsibility to revise or amend this opinion in the event of such actions or decisions. This opinion is being issued and delivered solely for your benefit and may not be relied upon by any other person. You may rely on this opinion letter in issuing your opinion to the Company in connection with the Registration Statement.

Very truly yours,

/s/ Harter Secrest & Emery LLP

Exhibit 12.1

The J. M. Smucker Company

Computation of Ratio of Earnings to Fixed Charges


	Three Months Ended July 31,			Year Ended April 30,
	2011			2011			2010			2009			2008			2007
Earnings before fixed charges:
Income before income taxes		166,826			717,164			730,753			396,065			254,788			241,004
Total fixed charges		21,237			90,563			84,351			75,560			50,617			30,423
Less: capitalized interest		(936	)		(1,778	)		(827	)		(900	)		(505	)		(306	)

Earnings available for fixed charges		187,127			805,949			814,277			470,725			304,900			271,121

Fixed charges:
Interest and other debt expense, net of capitalized interest		15,422			69,594			65,187			62,478			42,145			23,363
Capitalized interest		936			1,778			827			900			505			306
Estimated interest portion of rent expense		4,879			19,191			18,337			12,182			7,967			6,754

Total fixed charges		21,237			90,563			84,351			75,560			50,617			30,423

Ratio of earnings to fixed charges		8.8			8.9			9.7			6.2			6.0			8.9

(a)	For purposes of this calculation, management estimates approximately one-third of rent expense is representative of interest expense.

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus Supplement of The J. M. Smucker Company for the registration of debt securities and to the incorporation by reference therein of (i) our report dated June 22, 2011, except Notes E and R pertaining to reportable segments and guarantor and non-guarantor financial information, as to which the date is October 13, 2011, with respect to the consolidated financial statements of The J. M. Smucker Company, appearing in the Current Report on Form 8-K (dated October 13, 2011) and (ii) our report dated June 22, 2011 with respect to the effectiveness of internal control over financial reporting of The J. M. Smucker Company, incorporated by reference in its Annual Report (Form 10-K) for the year ended April 30, 2011, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Akron, Ohio

October 13, 2011

Exhibit 25.1

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM T-1

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

¨	CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

31-0841368

I.R.S. Employer Identification No.

800 Nicollet Mall

Minneapolis, Minnesota

55402

(Address of principal executive offices)

(Zip Code)

Holly H. Pattison

U.S. Bank National Association

1350 Euclid Ave.

Cleveland, Ohio 44115

(216) 623-5976

(Name, address and telephone number of agent for service)

The J. M. Smucker Company

See Table of Additional Obligors on Following Page

(Exact Name of Obligor as Specified in its Charter)


Ohio		34-0538550
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

One Strawberry Lane

Orrville, OH

44667

(Address of Principal Executive Offices)

(Zip Code)

Debt Securities

and Guarantees of Debt Securities

(Title of the Indenture Securities)

TABLE OF ADDITIONAL OBLIGORS


Exact name of obligor as specified in its charter*	State of Incorporation or Formation	I.R.S. employer identification number
J.M. Smucker LLC	Ohio	03-0434070
The Folgers Coffee Company	Delaware	26-1708101

*Address of principal executive offices for both additional obligors:

c/o The J. M. Smucker Company

One Strawberry Lane

Orrville, Ohio 44667-0280

FORM T-1

Item 1.

GENERAL INFORMATION . Furnish the following information as to the Trustee.

a) Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

b) Whether it is authorized to exercise corporate trust powers.

Yes

Item 2.

AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

A copy of the Articles of Association of the Trustee.*

A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

A copy of the existing bylaws of the Trustee.**

A copy of each Indenture referred to in Item 4. Not applicable.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

Report of Condition of the Trustee as of June 30, 2011 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

*	Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

**	Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration Number 333-166527 filed on May 5, 2010.

SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cleveland, Ohio on the 6th of October, 2011.



By:		/s/ Holly H. Pattison
		Holly H. Pattison Vice President

Exhibit 2

LOGO

Comptroller of the Currency

Administrator of National Banks

Washington, DC 20219

CERTIFICATE OF CORPORATE EXISTENCE

I, John Walsh, Acting Comptroller of the Currency, do hereby certify that:

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering, regulation and supervision of all National Banking Associations.

2. “U.S. Bank National Association,” Cincinnati, Ohio, (Charter No. 24), is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this Certificate.


		IN TESTIMONY WHERE OF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department, in the City of Washington and District of Columbia, this September 9, 2010.

		Acting Comptroller of the Currency

Exhibit 3

LOGO

Comptroller of the Currency

Administrator of National Banks

Washington, DC 20219

CERTIFICATE OF FIDUCIARY POWERS

I, John Walsh, Acting Comptroller of the Currency, do hereby certify that:

2. “U.S. Bank National Association,” Cincinnati, Ohio, (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat.668, 12 U.S.C. 92 a, and that the authority so granted remains in full force and effect on the date of this Certificate.


		IN TESTIMONY WHERE OF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department, in the City of Washington and District of Columbia, this September 9, 2010.

		Acting Comptroller of the Currency

Exhibit 6

CONSENT

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

Dated: October 6, 2011



By:		/s/ Holly H. Pattison
		Holly H. Pattison Vice President

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 6/30/2011

($000’s)


	6/30/2011
Assets
Cash and Balances Due From
Depository Institutions	$	15,249,371
Securities		63,952,096
Federal Funds		15,876
Loans & Lease Financing Receivables		190,017,874
Fixed Assets		5,231,718
Intangible Assets		13,050,819
Other Assets		22,581,835

Total Assets	$	310,099,589

Liabilities
Deposits	$	218,820,466
Fed Funds		7,695,079
Treasury Demand Notes		0
Trading Liabilities		550,498
Other Borrowed Money		33,124,842
Acceptances		0
Subordinated Notes and Debentures		7,679,246
Other Liabilities		8,693,748

Total Liabilities	$	276,563,879

Equity
Minority Interest in Subsidiaries	$	1,821,732
Common and Preferred Stock		18,200
Surplus		14,136,872
Undivided Profits		17,558,906

Total Equity Capital	$	33,535,710
Total Liabilities and Equity Capital	$	310,099,589