==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Second Supplemental Indenture
Dated as of April 20, 1994
Providing for Issuance of
9% Series AA Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
==========================================================
SECOND SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of April 20, 1994, between CONAGRA,
INC., a Delaware corporation (the "Issuer"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking corporation (the
"Trustee").
W I T N E S S E T H :
WHEREAS, in accordance with Sections 2.1, 2.3 and
8.1 of the Subordinated Indenture dated as of March 10,
1994, between the Issuer and the Trustee (the "Indenture"),
this Supplemental Indenture is being entered into in order
to establish the form and terms of a series of Securities to
be issued in connection with the issuance by ConAgra
Capital, L.C., an Iowa limited liability company
("Capital"), of its Common Interests (the "Common
Interests");
WHEREAS, the Issuer has duly authorized the
execution and delivery of this Supplemental Indenture to
provide, among other things, for the authentication,
delivery and administration of such series of Securities;
WHEREAS, all things necessary to make this
Supplemental Indenture a valid supplement to Indenture
according to its terms and the terms of the Indenture have
been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of such series of Securities by the holders thereof, the
Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders
from time to time of such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the
Indenture. All capitalized terms used herein without
definition shall have the meanings specified in the
Indenture.
2
SECTION 1.2 Additional Terms Defined. As used in
this Supplemental Indenture, the additional terms set forth
below shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 2.8 hereof.
"Common Interests" shall mean Common Membership
Interests as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as
initial depositary of the Series AA Debentures upon a
Preferred Security Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section
2.12 hereof and (b) on and after a Preferred Security
Exchange, have the meaning set forth in Section 5.1 of the
Indenture.
"Expense Agreement" means the Agreement as to
Expenses and Liabilities dated as of April 20, 1994 between
the Issuer and Capital.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by the Issuer for the benefit of the holders from time to
time of the Common Interests and other Preferred Interests
of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability
Company Operating Agreement dated as of March 11, 1994 by
and among the Managing Members.
"Preferred Interests" means Series Preferred
Membership Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of
9% Series A Debentures for 9% Series A Preferred Securities
pursuant to Section 7 of the Written Action.
"Series A Debentures" shall mean the 9% Series A
Debentures as defined in the First Supplemental Indenture
dated April 20, 1994.
"9% Series A Preferred Securities" shall mean 9%
Series A Preferred Securities as defined in the Written
Action.
3
"Underwriting Agreement" means the underwriting
agreement dated as of April 20, 1994, among the Issuer,
Capital and Smith Barney Shearson Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated as representatives of
the several underwriters named therein.
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
Agreement dated April 20, 1994, establishing the terms of
the Preferred Interests.
ARTICLE TWO
ISSUANCE OF 9% SERIES AA DEBENTURES
SECTION 2.1 Issuance of 9% Series AA Debentures.
There shall be a series of Securities designated "9% Series
AA Debentures due 2043" (the "Series AA Debentures") and
such Series AA Debentures shall have the terms set forth in
this Article Two in accordance with the provisions of the
Indenture and this Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal
Amount. The aggregate principal amount of the Series AA
Debentures which may be authenticated and delivered shall be
limited to $26,600,000 (or up to $30,590,000 aggregate
principal amount if and to the extent the underwriters'
over-allotment option granted by the Issuer in the
Underwriting Agreement is exercised).
SECTION 2.3 Maturity of the Series AA Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series AA Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) May 31, 2043 (subject to the Issuer's
right to exchange the Series AA Debentures for new
debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated;
provided that the parenthetical to clause (a) and the
entirety of clause (b) shall be inapplicable on and after
the date of any Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series AA
Debentures upon redemption of Common Interests.
Notwithstanding the provisions of Section 2.3, if Capital
redeems the Preferred Interests in accordance with the terms
thereof, the Series AA Debentures shall become due and
payable in a principal amount together with any and all
accrued interest thereon, including Additional Interest, if
any. Any payment pursuant to this Section 2.4 shall be made
prior to 12:00 noon, New York time, on the date fixed for
4
such redemption or at such other time on such earlier date
as Capital and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less
than 30 nor more than 60 days' prior notice, the Issuer
shall have the right to prepay the Series AA Debentures
(together with any accrued but unpaid interest, including
Additional Interest, if any, on the portion being prepaid),
without premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after May 31, 1999; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after April 20, 1994 in United States law
(including the enactment or imminent enactment of any
legislation, the publication of any judicial decisions
or regulatory rulings or a change in the official
position or in the interpretation of law or
regulations), there exists more than an insubstantial
risk that the Issuer will be precluded from deducting
the interest on the Series AA Debentures for federal
income tax purposes.
SECTION 2.6 Exchange of Series AA Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series AA Debentures when due, the Issuer may
elect to exchange such Series AA Debentures for new
debentures with an equal aggregate principal amount issued
under the Indenture with terms substantially identical to
the Series AA Debentures; provided that the Issuer may not
so elect to exchange any Series AA Debentures, unless at the
time of such exchange Capital owns all of the Series AA
Debentures and, as determined in the judgment of the
Managing Members and Capital's financial advisor (selected
by the Managing Members and who shall be unaffiliated with
the Issuer and shall be among the 30 largest investment
banking firms, measured by total capital, in the United
States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of
Default or event that with the giving of notice or the
passage of time would constitute an Event of Default on any
Securities pertaining to Preferred Interests of any series,
has occurred and is continuing, (c) the Issuer has made
timely payments on the Series A Debentures for the
immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the 9% Series A
Preferred Securities, (e) there is then no present reason to
believe the Issuer will be unable to make timely payment of
principal and interest on such new debentures, (f) such new
5
debentures are being issued on terms, and under
circumstances, that are consistent with those which a lender
would then require for a loan to an unrelated party, (g)
such new debentures are being issued at a rate sufficient to
provide payments equal to or greater than the amount of
distributions required under the Common Interests, (h) such
debentures are being issued for a term that is consistent
with market circumstances and the Issuer's financial
condition, (i) immediately prior to issuing such new
debentures, the senior unsecured long-term debt of the
Issuer is (or if no such debt is outstanding, would be)
rated not less than BBB (or the equivalent) by Standard &
Poor's Corporation and Baa1 (or the equivalent) by Moody's
Investors Service, Inc. (or if either of such rating
organizations is not then rating the Issuer's senior
unsecured long-term debt, the equivalent of such rating by
any other "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act of 1933,
as amended) and any subordinated unsecured long-term debt of
the Issuer or, if there is no such debt then outstanding,
the Preferred Interests, are rated not less than BBB- (or
the equivalent) by Standard & Poor's Corporation or Baa3 (or
the equivalent) by Moody's Investors Service, Inc. or the
equivalent of either such rating by any other "nationally
recognized statistical rating organization" and (j) such new
debentures will have a final maturity no later than the one
hundredth anniversary of the issuance of the Preferred
Interests of the first series issued.
SECTION 2.7 Denomination and Interest on the
Series AA Debentures. (a) The Series AA Debentures shall
be issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series AA Debentures shall bear interest
at a rate of 9% per annum accruing from April 27, 1994 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series AA Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
principal and interest at such rate. The amount of interest
payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day
year and, for any period shorter than a full monthly
interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day of each calendar
month (an "Interest Payment Date") commencing on May 31,
1994 to the holder or holders of the Series AA Debenture on
the relevant record date (each, a "Record Date"), which
shall be one Business Day prior to the relevant Interest
Payment Date. If Interest Payment Date is not a Business
6
Day, then payment of the interest payable on such date will
be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and the Record Date for
such Interest Payment Date shall be one Business Day prior
to the date on which payment is to be made), in each case
with the same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time
following the issuance of the Common Interests, Capital
shall be required to pay, with respect to its income derived
from the interest payments on the Series AA Debentures, any
amounts, for or on account of any taxes, duties, assessments
or governmental charges of whatever nature imposed by the
United States or any other taxing authority, then, in any
such case, the Issuer will pay as interest such additional
amounts ("Additional Interest") as may be necessary in order
that the net amounts received and retained by Capital after
the payment of such taxes, duties, assessments or
governmental charges shall result in Capital's having such
funds as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental charges.
SECTION 2.9 Extension of Interest Period.
Notwithstanding the provisions of Section 2.7 hereof, the
Issuer shall have the right at any time or times during the
term of the Series AA Debentures, so long as the Issuer is
not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the
Series AA Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all interest then
accrued and unpaid (together with interest thereon at the
rate specified for the Series AA Debentures to the extent
permitted by applicable law); provided further that, during
any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer shall pay or
declare any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its
capital stock (other than payments to redeem common share
purchase rights under the Issuer's shareholder rights plan
dated July 10, 1986, as amended, or to declare a dividend of
similar share purchase rights in the future); and provided
further that any such extended interest period may only be
selected with respect to the Series AA Debentures if an
extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for
the Series AA Debentures, the Issuer may further extend the
interest payment period for the Series AA Debentures;
provided that such extended interest payment period for the
Series AA Debentures together with all such further
7
extensions thereof, may not exceed 18 months; and provided
further that any such further extended interest period may
only be selected with respect to the Series AA Debentures if
a further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Series AA Debentures for such period, then the Issuer
shall have the right to again extend the interest payment
period up to 18 months as herein described. The Issuer
shall give Capital notice of its selection of any extended
interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related
distribution, if any, to holders of the Common Interests or
(ii) the date Capital is required to give notice of the
record or payment date of such related distribution to the
New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Common Interests, but in
any event not less than two Business Days prior to such
record date.
SECTION 2.10 Set-off. Notwithstanding anything
to the contrary herein, prior to any Preferred Security
Exchange the Issuer shall have the right to set off any
payment it is otherwise required to make hereunder with and
to the extent the Issuer has theretofore made, or is
concurrently on the date of such payment making, a payment
under the Guarantee provided Issuer shall not affect any set
off with respect to the Series AA Debentures until all
payments required under the Series A Debentures have been
made.
SECTION 2.11 Certain Covenants. (a) So long as
the Preferred Interests remain outstanding, neither the
Issuer nor any majority-owned subsidiary of the Issuer shall
declare or pay any dividend on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the
Issuer's capital stock or make any guarantee payments with
respect to the foregoing (other than payments under the
Guarantee, payments to redeem common share purchase rights
under the Issuer'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 Issuer is in default with respect to its payment
obligations under the Guarantee or the Expense Agreement or
there shall have occurred an Event of Default or any event
that, with the giving of notice or the lapse of time or
both, would constitute an Event of Default under the
Securities.
(b) So long as the Preferred Interests remain
outstanding, the Issuer shall (i) not cause or permit any
Common Interests to be transferred, (ii) maintain direct or
8
indirect ownership of all outstanding securities in Capital
other than the Preferred Interests of any series and any
other securities permitted to be issued by Capital that
would not cause Capital to become an "investment company"
under the Investment Company Act of 1940, as amended, (iii)
cause at least 21% of the total value of Capital and at
least 21% of all interests in the capital, income, gain,
loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of Capital and timely perform all of their
respective duties as Managing Members of Capital, and (vi)
use reasonable efforts to cause Capital to remain a limited
liability company and otherwise continue to be treated as a
partnership for U.S. federal income tax purposes; provided
that the Issuer may permit Capital, solely for the purpose
of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Preferred
Interests, to consolidate or merge with or into a limited
liability company or a limited partnership formed under the
laws of any state of the United States of America; provided
that (1) such successor limited liability company or limited
partnership (x) expressly assumes all of the obligations of
Capital under the Common Interests and other series of
Preferred Interests then outstanding or (y) substitutes for
the Common Interests and any series of Preferred Interests
then outstanding other securities having substantially the
same terms as the Common Interests and any such Preferred
Interests (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in
the profits and assets of such successor entity, at least as
senior as the Common Interests and any such Preferred
Interests rank, respectively, with respect to participation
in the profits and assets of Capital, (2) the Issuer
expressly acknowledges such successor as the holder of all
of the Series AA Debentures and other series of debentures
issued under the Indenture then outstanding, (3) 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, (4) the holders of Common Interests
and any such Preferred Interests do not suffer any adverse
tax consequences as a result of such merger or
consolidation, (5) such merger or consolidation does not
cause any Preferred Interests to be downgraded by any
"nationally recognized statistical rating organization," as
that 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 (6) following such
merger or consolidation, neither the Issuer nor such
successor limited liability company or limited partnership
9
will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Common Interests remain
outstanding, the Issuer shall not consolidate with or merge
into any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not
permit any Person to merge into or consolidate with the
Issuer unless (i) in case the Issuer shall consolidate with
or merge into another Person or sell its properties and
assets as, or substantially as, an entirety to any Person,
the Person formed by such consolidation or into which the
Issuer is merged or the Person which purchases the
properties and assets of the Issuer as, or substantially, as
an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of
the United States of America, any State or the District of
Columbia, and shall expressly assume the Issuer's
obligations under the Indenture, this Supplemental Indenture
and the Series AA Debentures and (ii) immediately after
giving effect to the transaction no Event of Default shall
have occurred and be continuing.
(d) So long as the Series A Preferred
Securities remain outstanding, the provisions of Sections
2.11(b) and 9c) shall remain in full force and effect
notwithstanding satisfaction and discharge of the Indenture
pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior
to any Preferred Security Exchange, "Event of Default" means
any one of the following events:
(a) failure to pay when due any interest under
any Securities, including any Additional Interest, and such
failure shall continue for a period of 30 days (whether or
not payment is prohibited by the provisions contained in
Article Thirteen of the Indenture or otherwise); provided
that a valid extension of the interest payment period by the
Issuer shall not constitute a default in the payment of
interest for this purpose;
(b) failure to pay when due any principal under
any Securities (whether or not payment is prohibited by the
provisions contained in Article Thirteen of the Indenture or
otherwise);
(c) failure on the part of the Issuer duly to
observe or perform any other covenant or agreement on the
part of the Issuer in respect of the Securities (other than
a covenant or warranty in respect of the Series AA
Debentures a default in the performance or breach of which
is elsewhere in this Section specifically dealt with) or
10
contained in the Indenture, this Supplemental Indenture or
the Series AA Debentures, and continuance of such default or
breach for a period of 90 days after there as been given, by
registered or certified mail, to the Issuer by the Trustee
or any Holder hereof, a written notice specifying such
failure or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the
Issuer or any Consolidated Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any subsidiary or for any
substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer or any Consolidated Subsidiary
shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any Consolidated
Subsidiary or for any substantial part of its property, or
make any general assignment for the benefit of creditors.
If an Event of Default shall occur and be
continuing, then Capital will have the right (i) to declare
the principal of and the interest on the Series AA
Debentures (including any Additional Interest and any
interest subject to an extension election) and any other
amounts payable under the Series AA Debentures to be
forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series AA Debentures to the
contrary notwithstanding and (ii) to enforce its other
rights hereunder and thereunder. Capital may not accelerate
the principal amount of any Series AA Debenture unless the
principal amount of all Securities is accelerated.
If an Event of Default specified in clauses (d),
(e) or (f) above shall have occurred, the principal of and
11
interest on the Series AA Debentures shall thereupon and
concurrently become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series AA Debentures to the
contrary notwithstanding.
If an Event of Default specified in clause (a) or
(b) above shall have occurred and be continuing and Capital
shall have failed to pay any distributions on the Common
Interests when due (other than as a result of any valid
extension of the interest payment period by the Issuer for
the Series AA Debentures) or to pay any portion of the
redemption price of the Common Interests called for
redemption, then any Holder of Common Interests may, as set
forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive
payments of principal and interest on the Series AA
Debentures relating to such Common Interests but only in an
amount sufficient to enable Capital to pay such
distributions or redemption price.
Except as provided in this Section 2.12, Holders
of Common Interests shall have no rights to enforce any
obligations of the Issuer under the Indenture, this
Supplemental Indenture or the Series AA Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including
without limitation the definition of an "Event of Default",
shall apply to the Series AA Debentures and this Section
2.12 shall be of no further force or effect.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall
be deemed given by a party hereto if in writing and
delivered personally or by telegram or facsimile
transmission or by registered or certified mail (return
receipt requested) to the other party at the following
address for such party (or at such other address as shall be
specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
12
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The
Issuer shall have the right at all times to assign any of
its rights or obligations under the Indenture, this
Supplemental Indenture and the Series AA Debentures to a
direct or indirect wholly owned subsidiary of the
Issuer(other than to any Managing Member); provided that, in
the event of any such assignment, the Issuer shall remain
jointly and severally liable for all such obligations; and
provided further that in the event of an assignment prior to
a Preferred Security Exchange the Issuer shall have received
an opinion of nationally recognized tax counsel that such
assignment shall not constitute a taxable event of the
holders of Common Interests for federal income tax purposes.
Except as otherwise provided in this Supplemental Indenture,
Capital may not assign any of its rights under the Series AA
Debentures without the prior written consent of the Issuer.
Subject to the foregoing, the Indenture, this Supplemental
Indenture and the Series AA Debentures shall be binding upon
and inure to the benefit of the Issuer, Capital, the Holders
from time to time of the Series AA Debentures and their
respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental
Indenture, none of the Indenture, this Supplemental
Indenture nor the Series AA Debentures may be assigned by
either the Issuer or Capital and any assignment by the
Issuer or Capital in contravention of this Section 3.2 shall
be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL
INDENTURE AND THE Series AA Debentures SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 3.4 Counterparts. This Supplemental
Indenture may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
Section 3.5 Amendments. This Supplemental
Indenture may be amended as set forth in Article Eight of
the Indenture. Notwithstanding the foregoing, so long as
any Common Interests shall remain outstanding, (i) no
amendment to the provisions of the Indenture, this
13
Supplemental Indenture or the Series AA Debentures shall be
made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series AA Debentures, without
in each case the prior consent of holders of 66-2/3% of all
Common Interest then outstanding, unless and until all
Securities and all accrued and unpaid interest thereon
(including Additional Interest, if any) shall have been paid
in full and (ii) without the prior consent of holders of
100% of all Common Interests then outstanding, no amendment
shall be made to the provisions of this clause (ii) of
Section 3.5 or to (a) extend the stated maturity of the
principal of any Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption
thereof or change the currency in which the principal
thereof or interest thereon is payable or impair the right
to institute suit for the enforcement of any payment on any
Debenture when due or (b) reduce the aforesaid percentage in
principal amount of Debentures of any series the consent of
the holders of which is required for any such modification.
Any required consent of holders of Common Interest pursuant
to this Section 3.5 shall be in writing or shall be obtained
at a meeting of Common Interest holders.
Section 3.6 Waivers. Capital may not waive
compliance or waive any default in compliance by the Issuer
of any covenant or other term in the Indenture, this
Supplemental Indenture or the Series AA Debentures without
the approval of the same percentage of holders of Common
Interests, obtained in the same manner, as would be required
for an amendment of the Indenture, this Supplemental
Indenture or the Series AA Debentures to the same effect;
provided that if no approval would be required for any such
amendment, then Capital may waive such compliance or default
in any manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The
Issuer hereby acknowledges that the holders from time to
time of the Common Interests shall expressly be third party
beneficiaries of this Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to
Section 8.1 of the Indenture, Section 8.2 of the Indenture
is hereby amended for purposes of any and all Securities,
including without limitation the Series AA Debentures,
issued under the Indenture by substituting the phrase "of
not less than 66-2/3%" for the phrase "of not less than a
majority" in the first clause of such Section 8.2.
14
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the date and year first above written.
CONAGRA, INC.
By /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ David G. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest:
/s/ Frank P. Leslie
Name: Frank P. Leslie
Title: Assistant Secretary
15
Exhibit A
[Form of Face of Series AA Debenture]
No.
ConAgra, Inc.
9% Series AA Debentures due 2043
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
or registered assigns, at the
office or agency of the Issuer in The City of New York, the
principal sum of Dollars on May 31, 1995, in such
coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, at a rate of
9% per annum accruing from April 27, 1994 or from the most
recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series AA
Debentures. To the extent allowed by law, the Issuer will
also pay interest on overdue installments of principal and
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on May 31, 1994 to the holder or
holders of this Debenture on the relevant record date (each,
a "Record Date"), which shall be one Business Day prior to
the relevant Interest Payment Date. If Interest Payment
Date is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business
Day (and the Record Date for such Interest Payment Date
shall be one Business Day prior to the date on which payment
is to be made), in each case with the same force and effect
as if made on such date. If at any time following the
issuance of the Common Securities, Capital shall be required
to pay, with respect to its income derived from the interest
payments on the Series AA Debentures, any amounts, for or on
account of any taxes, duties, assessments or governmental
16
charges of whatever nature imposed by the United States or
any other taxing authority, then, in any such case, the
Issuer will pay as interest such additional amounts
("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after the
payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it
would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges.
Notwithstanding the forgoing, the Issuer shall have the
right at any time or times during the term of the Series AA
Debentures, so long as the Issuer is not in default in the
payment of interest under any of the Securities, to extend
the interest payment period for the Series AA Debentures up
to 18 months; provided that at the end of such period the
Issuer shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for
the Series AA Debentures to the extent permitted by
applicable law); provided further that, during any such
extended interest period, neither the Issuer nor any
majority owned subsidiary of the Issuer shall pay or declare
any dividends on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital
stock (other than payments to redeem common share purchase
rights under the Issuer's shareholder rights plan dated July
10, 1986, as amended, or to declare a dividend of similar
share purchase rights in the future); and provided further
that any such extended interest period may only be selected
with respect to the Series AA Debentures if an extended
interest period of identical length is simultaneously
selected for all Securities. Prior to the termination of
any such extended interest payment period for the Series AA
Debentures, the Issuer may further extend the interest
payment period for the Series AA Debentures; provided that
such extended interest payment period for the Series AA
Debentures together with all such further extensions
thereof, may not exceed 18 months; and provided further that
any such further extended interest period may only be
selected with respect to the Series AA Debentures if a
further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Debentures for such period, then the Issuer shall have
the right to again extend the interest payment period up to
18 months as herein described. The Issuer shall give
Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i)
the date Capital declares the related distribution, if any,
to the holders of the Common Interests or (ii) the date
Capital is required to give notice of the record or payment
date of such related distribution, if any, to the holders of
the Common Interests to the New York Stock Exchange or other
17
applicable self-regulatory organization or to holders of the
Common Interests, but in any event not less than two
Business Days prior to such record date.
Reference is made to the further provisions of
this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee
under the Indenture referred to below.
This Debenture is one of a duly authorized issue
of debentures, notes, bonds or other evidences of
indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture
dated as of March 10, 1994 and a Second Supplemental
Indenture dated as of April 20, 1994 (herein collectively
called the "Indenture"), duly executed and delivered by the
Issuer and First Trust National Association, as Trustee
(herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the holders of the Securities. The
Securities may be issued in one or more series, which
different series may be issued in various aggregate
principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and
may otherwise vary as in the Indenture provided. This
Debenture is one of a series designated as the "9% Series AA
Debentures due 2043" (the "Series AA Debentures") of the
Issuer, limited in aggregate principal amount to $26,600,000
(or up to $30,590,000 aggregate principal amount if and to
the extent the underwriters' over-allotment option granted
by the Issuer in the Underwriting Agreement is exercised).
In case an Event of Default with respect to the
Series AA Debentures, as defined in the Indenture, shall
have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
18
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of
each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity
of any Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time
of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security
so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the
Holder of each Security affected. It is also provided in
the Indenture that, with respect to certain defaults or
Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal
amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or
certain series of the Securities, as the case may be) waive
any such past default or Event of Default and its
consequences. The preceding sentence shall not, however,
apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Debenture and any
Debenture which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof
is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no
provision of this Debenture or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Debenture in the manner, at the
respective times, at the rate and in the coin or currency
herein prescribed.
The Series AA Debentures are issuable in
registered form without coupons in denominations of $25 and
any integral multiple of $25 at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York,
and in the manner and subject to the limitations provided in
the Indenture, but without the payment of any service
charge, notes may be exchanged for a like aggregate
19
principal amount of Series AA Debentures of other authorized
denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series
AA Debentures (together with any accrued but unpaid
interest, including Additional Interest, if any, on the
portion being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after May 31, 1999; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after April 20, 1994 in United States law
(including the enactment or imminent enactment of any
legislation, the publication of any judicial decisions
or regulatory rulings or a change in the official
position or in the interpretation of law or
regulations), there exists more than an insubstantial
risk that the Issuer will be precluded from deducting
the interest on the Series AA Debentures for federal
income tax purposes,
all as further provided in the Indenture.
The Series AA Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
20
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent
of the Issuer or the Trustee may deem and treat the
registered Holder hereof as the absolute owner of this
Debenture (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer
nor the Trustee nor any authorized agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant
or agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor
corporation, either directly or through the Issuer or any
successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and
released by the acceptance hereof and as part of the
consideration for the issue hereof.
21
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated: April 27, 1994
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
22