PAYMENT AND GUARANTEE AGREEMENT
THIS PAYMENT AND GUARANTEE AGREEMENT (the
"Guarantee"), dated as of April 20, 1994, is executed and
delivered by ConAgra, Inc., a Delaware corporation
("ConAgra" or the "Guarantor") for the benefit of the
Holders (as defined below) from time to time of the
Preferred Interests (as defined below) of ConAgra Capital
L.C., a limited liability company organized under the laws
of the state of Iowa (the "Issuer").
WHEREAS, the Issuer intends to issue its Common
Membership Interests (the "Common Interests") to and receive
related capital contributions (the "Common Interest
Payments") from HW Nebraska, Inc. and CP Nebraska, Inc. (the
"Managing Members") and to issue and sell from time to time,
in one or more series, Series Preferred Membership Interests
(the "Preferred Interests") with a liquidation preference
(the "Liquidation Preference") established by a written
action or actions of the Managing Members providing for the
issue of such series;
WHEREAS, the Issuer will purchase debentures (the
"Debentures") issued pursuant to the Subordinated Indenture
(the "Subordinated Indenture") dated as of March 10, 1994,
between the Guarantor and First Trust National Association,
a national banking corporation, as trustee, with the
proceeds from the issuance and sale of the Preferred
Interests and with the proceeds from the issuance and sale
of the Common Interest Payments; and
WHEREAS, the Guarantor desires hereby to
irrevocably and unconditionally agree to the extent set
forth herein to pay to the Holders the Guarantee Payments
(as defined below) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase
by each Holder of the Preferred Interests, which purchase
the Guarantor hereby agrees shall benefit the Guarantor and
which purchase the Guarantor acknowledges will be made in
reliance upon the execution and delivery of this Guarantee,
the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.
ARTICLE I
As used in this Guarantee, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to
such terms in the Limited Liability Company Operating
Agreement of the Issuer dated as of March 11, 1994.
"Expense Agreement" shall mean the Agreement as to
Expenses and Liabilities entered into between the Issuer and
ConAgra pursuant to which ConAgra has agreed to guarantee
the payment of any indebtedness or liabilities incurred by
the Issuer (other than obligations to Holders of Preferred
Interests in such Holders' capacities as holders of such
Preferred Interests).
"Guarantee Payments" shall mean the following
payments, without duplication, to the extent not paid by the
Issuer: (i) any accumulated and unpaid distributions which
have been theretofore declared on the Preferred Interests of
any series out of funds legally available therefor, (ii) the
redemption price (including all accumulated and unpaid
distributions) payable out of funds legally available
therefor with respect to any Preferred Interests of any
series called for redemption by the Issuer and (iii) upon
the liquidation of the Issuer, the lesser of (a) the
Liquidation Distribution (as defined below) and (b) the
amount of assets of the Issuer legally available for
distribution to Holders of Preferred Interests of such
series in liquidation.
"Holder" shall mean any holder from time to time
of any Preferred Interests of any series of the Issuer;
provided, however, that in determining whether the Holders
of the requisite percentage of Preferred Interests have
given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any entity owned
50% or more by the Guarantor, either directly or indirectly.
"Liquidation Distribution" shall mean the
aggregate of the stated Liquidation Preference of all series
of Preferred Interests issued and outstanding and all
accumulated and unpaid distributions (whether or not
declared) to the date of payment.
"Managing Members" refers to HW Nebraska, Inc. and
CP Nebraska, Inc. in their capacity as holders of all of the
Issuer's Common Interests.
"Redemption Price" shall mean the stated
Liquidation Preference per Preferred Interest plus
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accumulated and unpaid distributions (whether or not
declared) to the date fixed for redemption.
ARTICLE II
Section 2.01. The Guarantor irrevocably and
unconditionally agrees, to the extent set forth herein, to
pay in full, to the Holders the Guarantee Payments, as and
when due (except to the extent paid by the Issuer),
regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert.
This Guarantee is continuing, irrevocable,
unconditional and absolute. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment
of the required amounts by the Guarantor to the Holders or
by causing the Issuer to pay such amounts to such Holders.
Section 2.02. The Guarantor hereby waives notice
of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for
payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 2.03. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the
Issuer of any express or implied agreement, covenant,
term or condition relating to the Preferred Interests
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the redemption price,
liquidation or other distributions or any other sums
payable under the terms of the Preferred Interests or
the extension of time for the performance of any other
obligation under, arising out of, or in connection
with, the Preferred Interests;
(c) any failure, omission, delay or lack of
diligence on the part of the Holders to enforce, assert
or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the
Preferred Interests, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
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creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency
in, any of the Preferred Interests; or
(f) the settlement or compromise of any
obligation guaranteed hereby or hereby incurred.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
Section 2.04. This is a guarantee of payment and
not of collection. A Holder may enforce this Guarantee
directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought
against the Issuer or any other person or entity before
proceeding against the Guarantor. Subject to Section 2.05
hereof, all waivers herein contained shall be without
prejudice to the Holders' right at the Holders' option to
proceed against the Issuer, whether by separate action or by
joinder. The Guarantor agrees that this Guarantee shall not
be discharged except by payment of the Guarantee Payments in
full (to the extent not paid by the Issuer) and by complete
performance of all obligations of the Guarantor contained in
this Guarantee.
Section 2.05. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in
respect of any amounts paid to the Holders by the Guarantor
under this Guarantee and shall have the right to waive
payment of any amount of distributions in respect of which
payment has been made to the Holders by the Guarantor
pursuant to Section 2.01 hereof; provided, however, that the
Guarantor shall not (except to the extent required by
mandatory provisions of law) exercise any rights which it
may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result
of a payment under this Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to
pay over such amount to the Holders.
Section 2.06. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of
the Issuer with respect to the Preferred Interests and that
the Guarantor shall be liable as principal and sole debtor
hereunder to make Guarantee Payments pursuant to the terms
of this Guarantee notwithstanding the occurrence of any
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event referred to in subsections (a) through (f), inclusive,
of Section 2.03 hereof.
ARTICLE III
Section 3.01. So long as any Preferred Interests
of any series remain outstanding, the Guarantor shall not
and shall not permit any of its majority owned subsidiaries
to declare or pay any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of the Guarantor's capital stock or make any guarantee
payments with respect to the foregoing (other than (i)
payments under this Guarantee or (ii) payments to redeem
common share purchase rights under the Guarantor's
shareholder rights plan dated July 10, 1986, as amended, or
the declaration of a dividend of similar share purchase
rights in the future), if at such time the Guarantor shall
be in default with respect to its payment obligations
hereunder or there shall have occurred any event that, with
the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Debentures.
Section 3.02. The Guarantor covenants, so long as
any Preferred Interests of any series remain outstanding it
will: (i) not cause or permit any Common Interests of the
Issuer to be transferred; (ii) maintain direct or indirect
100% ownership of all outstanding interests of the Issuer
other than the Preferred Interests of any series and any
other securities permitted to be issued by the Issuer that
would not cause it to become an "investment company" under
the Investment Company Act of 1940, as amended; (iii) cause
at least 21% of the total value of the Issuer and at least
21% of all interests in the capital, income, gain, loss,
deduction and credit of the Issuer to be represented by
Common Interests; (iv) not voluntarily dissolve, wind-up or
liquidate the Issuer or either of the Managing Members; (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of the Issuer and timely perform all of
their respective duties as Managing Members (including the
duty to declare and pay distributions on the Preferred
Interests) and (vi) to use reasonable efforts to cause the
Issuer to remain a limited liability company under the laws
of the State of Iowa and otherwise continue to be treated as
a partnership for United States tax purposes; provided that
the Guarantor may, solely to change the domicile of the
Issuer or to avoid tax consequences adverse to the Guarantor
or Issuer or holders of Preferred Interests, permit the
Issuer to consolidate or merge with or into a limited
liability company or limited partnership organized as such
under the laws of any state of the United States of America
so long as:
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(a) such successor entity either (x) expressly
assumes all of the obligations of the Issuer under each
series of Preferred Interest then outstanding or (y)
substitutes for the Preferred Securities then
outstanding other securities having substantially the
same terms as the Preferred Interests then outstanding
(the "Successor Securities") so long as the Successor
Securities rank with respect to participation in the
profits or assets of the successor entity, at least as
senior as the respective Preferred Interests rank with
respect to participation in the profits or assets of
Issuer,
(b) the Guarantor expressly acknowledges such
successor as the holder of all of the Debentures
relating to each series of Preferred Interests then
outstanding,
(c) such merger or consolidation does not cause
any series of Preferred Interests then outstanding to
be delisted by any national securities exchange or
other organization on which such series is then listed,
(d) Holders of outstanding Preferred Interests do
not suffer any adverse tax consequences as a result of
such merger or consolidation,
(e) such merger or consolidation does not cause
any series of Preferred Interests to be downgraded by
any "nationally recognized statistical rating
organization," as such term is defined by the
Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, as amended,
and
(f) following such merger or consolidation,
neither the Guarantor nor such successor limited
liability company are an "investment company" under the
Investment Company Act of 1940, as amended.
Section 3.03. The Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other
liabilities of the Guarantor, (ii) pari passu with the most
senior preferred stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or
preference stock of any affiliate of the Guarantor and (iii)
senior to the Guarantor's common stock.
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ARTICLE IV
This Guarantee shall terminate and be of no
further force and effect as to any series of Preferred
Interest upon full payment of the Redemption Price of all
Preferred Interests of such series, and shall terminate
completely upon full payment of the amounts payable to the
Holders upon liquidation of the Issuer; provided, however,
that this Guarantee shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder
of Preferred Interests of any series must restore payment of
any sums paid under the Preferred Interests of such series
or under this Guarantee for any reason whatsoever. The
Guarantor agrees to indemnify each Holder and hold it
harmless against any loss it may suffer in such
circumstances.
ARTICLE V
Section 5.01. All guarantees and agreements
contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders.
The Guarantor shall not assign its obligations hereunder
without the prior approval of the Holders of not less than
66-2/3% in liquidation preference of all Preferred Interests
of all series then outstanding voting as a single class.
Section 5.02. Except with respect to any changes
which do not adversely affect the rights of Holders (in
which cases no vote will be required), this Guarantee may
only be amended by instrument in writing signed by the
Guarantor with the prior approval of the Holders of not less
than 66-2/3% in stated liquidation preference of all
Preferred Interests of all series then outstanding voting as
a single class.
Section 5.03. Any notice, request or other
communication required or permitted to be given hereunder to
the Guarantor shall be given in writing by delivering the
same against receipt therefor by facsimile transmission
(confirmed by mail), addressed to the Guarantor, as follows
(and if so given, shall be deemed given when mailed), to
wit:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
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Any notice, request or other communication
required or permitted to be given hereunder to the Holders
shall be given by the Guarantor in the same manner as
notices sent by the Issuer to the Holders.
Section 5.04. The masculine and neuter genders
used herein shall include the masculine, feminine and neuter
genders.
Section 5.05. This Guarantee is solely for the
benefit of the Holders and is not separately transferable
from the Preferred Interests.
Section 5.06. THIS GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
THIS GUARANTEE is executed as of the day and year
first above written.
ConAgra, Inc.
By /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President,
Finance and
Treasurer
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