AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT, dated as of April 20, 1994 between
ConAgra, Inc. ("ConAgra"), a corporation organized under the
laws of the State of Delaware, and ConAgra Capital, L.C., a
limited liability company organized under the laws of the
State of Iowa (the "Company).
WHEREAS, the Company 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, ConAgra will indirectly own all of the
Common Interests of the Company;
NOW, THEREFORE, in consideration of the purchase
by each holder of the Preferred Interests, which purchase
ConAgra hereby agrees shall benefit ConAgra and which
purchase ConAgra acknowledges will be made in reliance upon
the execution and delivery of this Agreement, ConAgra and
the Company hereby agree as follows:
Section 1.01. Guarantee by ConAgra. Subject to
the terms and conditions hereof, ConAgra hereby irrevocably
and unconditionally guarantees to each person or entity to
whom the Company is now or hereafter becomes indebted or
liable (other than obligations to holders of the Preferred
Interests of any series in such holders' capacities as
holders of such shares; such obligations being separately
guaranteed to the extent set forth in the Payment and
Guarantee Agreement dated the date hereof and executed and
delivered by ConAgra (the "Guarantee")) (the
"Beneficiaries") the full payment, when and as due,
regardless of any defense, right of set-off or counterclaim
which the Company may have or assert, of any and all
indebtedness and liabilities of the Company to such
Beneficiaries (collectively, the "Obligations"). This
Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement
shall terminate and be of no further force and effect upon
the later of (i) the date on which full payment has been
made of all amounts payable to all holders of any series of
the Preferred Interests upon liquidation of the Company and
(ii) the date on which there are no Beneficiaries remaining;
provided, however, that this Agreement 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 or
any Beneficiary must restore payment of any sums paid under
the Preferred Interests of such series, under any
Obligation, under the Guarantee or under this Agreement for
any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. ConAgra hereby
waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply and ConAgra
hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 1.04. Releases, Waivers, Etc. The
obligations, covenants, agreements and duties of ConAgra
under this Agreement 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 Company
of any express or implied agreement, covenant, term or
condition relating to the Obligations to be performed or
observed by the Company;
(b) the extension of time for the payment by the
Company of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of,
or in connection with, the Obligations;
(c) any failure, omission, delay or lack of
diligence on the part of the Beneficiaries to enforce,
assert or exercise any right, privilege, power or remedy
conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Company
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
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Company or any of the assets of the Company;
or
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(e) the settlement or compromise of any
Obligation guaranteed hereby or any obligation hereby
incurred.
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, ConAgra with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may
enforce this Agreement directly against ConAgra and ConAgra
waives any right or remedy to require that any action be
brought against the Company or any other person or entity
before proceeding against ConAgra.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives
of ConAgra and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there
remains any Beneficiary of the Company, or any Preferred
Interest of any series remains outstanding, this Agreement
shall not be modified or amended in any manner adverse to
such Beneficiaries or to the holders of the Preferred
Interests.
Section 2.03. Notices. Any notice, request or
other communication required or permitted to be given
hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission
(confirmed by mail), addressed as follows (and if so given,
shall be deemed given when mailed), to wit:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
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Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
THIS AGREEMENT 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
CONAGRA CAPITAL, L.C.
By: CP Nebraska, Inc., a Nebraska
corporation, as Managing
Member
By /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
By: HW Nebraska, Inc., a Nebraska
corporation, as Managing
Member
By /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
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