Exhibit 10.6
BUYER RELEASE AGREEMENT
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THIS ACQUIRED COMPANIES RELEASE AGREEMENT (the "Agreement") dated November
24, 2003 is entered into between CONAGRA FOODS, INC., a Delaware corporation
("ConAgra") and the ACQUIRED COMPANIES (as defined below).
RECITALS:
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(a) ConAgra and UAP Holding Corp., a Delaware corporation ("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 Acquired Companies.
(b) Pursuant to the terms of the Definitive Agreement, UAP agreed to cause
each of the Acquired Companies to execute and deliver to ConAgra an
agreement pursuant to which the Acquired Companies release ConAgra and
its Affiliates 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, each Acquired Company
hereby expressly releases any and all Liabilities, Actions, causes of action or
other matters, whether known or unknown, it has or may have against ConAgra
and/or its Affiliates (other than the Acquired Companies) and its respective
officers, directors, and employees (in their capacities as officers, directors
and 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 each
Acquired Company reserves all claims and rights it may have against ConAgra with
respect to (i) claims arising under the Definitive Agreement, the Ancillary
Agreements, or any agreement entered into in connection with the transactions
contemplated by the Definitive Agreement, (ii) product liability claims for
products sold by ConAgra to any Acquired Company prior to the date hereof, (iii)
items 1, 5 and 6 of Exhibit 9.1.3 to the Definitive Agreement, and (iv) claims
arising from any act or omission constituting fraud, gross negligence or willful
misconduct.
2. Notices. All notices, demands or 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.
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
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to an Affiliate of such party and except that the Acquired Companies 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 any Acquired
Company 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.
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
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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.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Its: Authorized Signatory
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ACQUIRED COMPANIES:
UNITED AGRI PRODUCTS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory
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AG-CHEM, INC., XXXXXX CHEMICALS, INC.,
a Maryland corporation a Colorado corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 23, INC., F/K/A CAG 23, INC., CROPMATE COMPANY,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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CSK ENTERPRISES, INC., GAC 26, INC.,
a Delaware corporation a Nebraska corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 27, INC. F/K/A CAG 27, INC., GROWER SERVICE CORPORATION (NEW YORK),
a Delaware corporation a New York corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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HACO, INC., LOVELAND INDUSTRIES, INC.,
an Illinois corporation a Colorado corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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LOVELAND PRODUCTS, INC., GENMARKS, INC.,
a Colorado corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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MIDWEST AGRICULTURE WAREHOUSE CO., XXXXXXX CHEMICAL CO.,
a Nebraska corporation a North Dakota corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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PLATTE CHEMICAL CO., PUEBLO CHEMICAL & SUPPLY CO.,
a Nebraska corporation a Colorado corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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RAVAN PRODUCTS, INC., S.E. ENTERPRISES, INC.,
a Georgia corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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SNAKE RIVER CHEMICALS, INC., TRANSBAS, INC.,
an Idaho corporation a Tennessee corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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TRI-RIVER CHEMICAL COMPANY, INC., TRI-STATE CHEMICALS, INC.,
a Washington corporation a Texas corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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TRI-STATE DELTA CHEMICALS, INC., UAP RECEIVABLES CORPORATION,
a Mississippi corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 22, INC. F/K/A UAP/CAG 22, INC., UAP/GA AG CHEM, INC.,
a Texas corporation a Georgia corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAPLP, INC., UNITED AGRI PRODUCTS - FLORIDA, INC.,
a Delaware corporation a Florida corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UNITED AGRI PRODUCTS FINANCIAL VERDICON, INC.,
SERVICES, INC., a Colorado corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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YVC, INC., UNITED AGRI PRODUCTS CANADA INC.,
a Montana corporation a Canadian corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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2326396 CANADA, INC.,
a Canadian corporation
By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory
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