Exhibit 10.7
SELLER RELEASE AGREEMENT
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THIS SELLER RELEASE AGREEMENT (this "Agreement") dated November 24, 2003 is
entered into between CONAGRA FOODS, INC., a Delaware corporation ("ConAgra") and
UAP HOLDING CORP., a Delaware corporation ("UAP").
RECITALS:
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(a) ConAgra and UAP are parties to that certain Stock Purchase Agreement,
dated October 29, 2003 (the "Definitive Agreement") pursuant to which
ConAgra agreed to sell, and UAP agreed to purchase, all of the issued
and outstanding shares of the capital stock of the Acquired Companies.
(b) Pursuant to the terms of the Definitive Agreement, ConAgra agreed to
execute and deliver, and cause those of its Subsidiaries set forth on
the signature page hereto to execute and deliver, to Apollo an
agreement pursuant to which ConAgra and its Subsidiaries release the
Acquired Companies and the Company Employees from all matters arising
prior to the Closing Date except as provided herein.
AGREEMENT:
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1. Release. Except as expressly provided below, ConAgra and each of its
Subsidiaries hereby expressly releases any and all Liabilities, Actions, causes
of action, or other matters, whether known or unknown, it has or may have
against the Acquired Companies and its respective officers, directors and
employees (in their capacities as officers, directors and employees) and/or the
Company Employees (in their capacities as Company Employees) relating to, or
arising out of, or in any way connected with events or happenings which occurred
or failed to occur on or prior to the date hereof. Notwithstanding the
foregoing, this Release shall not apply to, and ConAgra and each Subsidiary
reserves all claims and rights it may have against the Acquired Companies with
respect to (i) claims arising under the Definitive Agreement, the Ancillary
Agreements, or any other agreement entered into in connection with the
transactions contemplated by the Definitive Agreement, (ii) items 1, 5 and 6 of
Exhibit 9.3.1 to the Definitive Agreement, and (iii) claims arising from any act
by any Acquired Company and/or any Company Employee constituting fraud, gross
negligence or willful misconduct.
2. Notices. Any notices, demands and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed in accordance with the
provisions of the Definitive Agreement.
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3. Assignment. None of the parties hereto shall assign its rights or
delegate its duties under this Agreement without the prior written consent of
the other parties hereto except to an Affiliate of such party and except that
UAP may assign and/or charge all or any of its rights under this Agreement by
way of security to any bank(s) and/or holders of any debt securities and/or
financial institution(s) and/or hedge counterparties and/or any other person
(together, the "Financiers") lending money or making other banking facilities
available to the Acquired Companies, UAP and their respective affiliates or to
any Financiers who provide funds on or in connection with any subsequent
refinancing of any such funding or to any person from time to time appointed by
any Financier to act as a security trustee on behalf of such Financier; without
limitation to the foregoing, any such person or Financier may assign such rights
on any enforcement of the security under such finance arrangement; provided
further, however, that no assignment under this Section 3 shall relieve UAP of
its obligations hereunder. Subject to the foregoing, this Agreement shall be
binding on, and inure to the benefit of, the parties and their respective
affiliates, successors and assigns.
4. Miscellaneous.
4.1 Defined Terms. Unless the context requires otherwise, each defined
term used herein shall have the same meaning given to such defined
term in the Definitive Agreement.
4.2 Terms Generally. The headings of Sections are inserted for convenience
of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. Unless the context
shall otherwise require, any reference to any agreement or other
instrument is to it as amended and supplemented from time to time.
4.3 Amendments. This Agreement may not be amended or supplemented, nor may
any rights hereunder be waived, except in writing signed by each of
the parties affected thereby.
4.4 Severability. If any provision or any part of any provision of this
Agreement is held to be illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect the
validity or enforceability of any other provision of this Agreement or
part hereof which shall continue in full force and effect.
4.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.6 Governing Law. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to
choice of law or conflicts of law provisions.
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4.7 Waiver. The waiver by any party of any instance of any other party's
noncompliance with any obligation or responsibility herein shall not
be deemed a waiver of other instances or of any party's remedies for
such noncompliance. No delay or failure by one party to exercise any
right or remedy against another party will be construed as a waiver of
that right or remedy.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly and lawfully authorized officers or legal representatives
effective as of the day and year first above written.
CONAGRA FOODS, INC., UAP HOLDING CORP.,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Authorized Signatory Its: Authorized Signatory
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CONAGRA TRADE GROUP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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CONAGRA FERTILIZER COMPANY,
a Nebraska corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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CONAGRA BRANDS, INC.,
a Nebraska corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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CONAGRA INTERNATIONAL FERTILIZER
COMPANY,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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CGRT, INC.,
a Nebraska corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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▇-▇▇▇▇▇▇▇.▇▇▇, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Authorized Signatory
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