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EXHIBIT 10.29
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of September 30, 1996 (the "Guaranty
Agreement"), is given by
RALCORP HOLDINGS, INC., a Missouri corporation (the "Guarantor"), in favor
of
NATIONSBANK, N.A., a national banking association, in its capacity as
agent (in such capacity, hereinafter referred to as the "Agent") for the
various lenders from time to time parties to that certain Credit Agreement
dated as of the date hereof (such Credit Agreement, as the same may be modified
or amended from time to time, being hereinafter referred to as the "Credit
Agreement") among the Borrower hereinafter referred to, the Agent and the
Lenders (capitalized terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement), for the benefit of
XXXXXXX RESORTS, INC., a Colorado corporation (the "Borrower").
RECITALS:
1. Pursuant to the Credit Agreement, the Lenders have agreed, subject to
certain terms and conditions, to make a $140,000,000 bridge loan facility
available to the Borrower.
2. As a condition precedent to making the bridge loan facility available
to the Borrower pursuant to the Credit Agreement, the Lenders have required,
among other things, that the Guarantor guarantee all of the Borrower's
obligations arising under the Credit Agreement and the other Credit Documents
referred to therein.
3. The Borrower is a direct wholly-owned Subsidiary of the Guarantor.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantor hereby agrees as follows:
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1. Guarantee of Payment. The Guarantor hereby irrevocably and
unconditionally guarantees to the Agent and the Lenders the prompt payment,
when due, by acceleration or otherwise, of the Borrower's Obligations. For the
purposes hereof the "Borrower's Obligations" means all indebtedness,
obligations and liabilities of the Borrower under the Credit Agreement or any
other of the Credit Documents to which the Borrower is a party, now existing or
hereafter arising, due or to become due, direct or indirect, absolute or
contingent, howsoever evidenced, held or acquired, as such indebtedness,
obligations and liabilities may be modified, extended, renewed or replaced from
time to time. The guaranty of the Guarantor as set forth in this section is a
guaranty of payment and not of collection.
2. Release of Collateral, Parties Liable, etc. The Guarantor agrees that
the whole or any part of any security now or hereafter held for the Borrower's
Obligations may be exchanged, compromised, impaired, released or surrendered
from time to time; that neither the Agent nor the Lenders shall have any
obligation to protect, perfect, secure or insure any Liens now or hereafter
held for the Borrower's Obligations or the properties subject thereto; that the
time or place of payment of the Borrower's Obligations may be changed or
extended, in whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in part; that the Borrower may be granted
indulgences generally; that any provisions of the Credit Documents or any other
documents executed in connection with this transaction may be modified, amended
or waived; that any party liable for the payment of the Borrower's Obligations
may be granted indulgences or released; and that any deposit balance for the
credit of the Borrower or any other party liable for the payment of the
Borrower's Obligations or liable upon any security therefor may be released, in
whole or in part, at, before and/or after the stated, extended or accelerated
maturity of the Borrower's Obligations, all without notice to or further assent
by the Guarantor, who shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
3. Waiver of Rights. The Guarantor expressly waives: (a) notice of
acceptance of this Guaranty Agreement by the Agent and the Lenders and of all
extensions of credit to the Borrower by the Agent or any Lender; (b)
presentment and demand for payment of any of the Borrower's Obligations; (c)
protest and notice of dishonor or of default to the Guarantor or to any other
party
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with respect to the Borrower's Obligations or with respect to any security
therefor; (d) notice of the Agent or any Lender obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, liens,
or encumbrances now or hereafter securing the Borrower's Obligations, or the
Agent's or any Lender's subordinating, compromising, discharging or releasing
such security interests, liens or encumbrances; (e) all other notices to which
the Guarantor might otherwise be entitled; (f) demand for payment under this
Guaranty Agreement; and (g) any right to assert against the Agent or any
Lender, as a defense, counterclaim, set-off or cross-claim, any defense (legal
or equitable), set-off, counterclaim or claim which the Guarantor may now or
hereafter have against the Agent or any Lender or the Borrower, but such waiver
shall not prevent the Guarantor from asserting against the Agent or any Lender
in a separate action, any claim, action, cause of action, or demand that the
Guarantor might have, whether or not arising out of this Guaranty Agreement.
4. Primary Liability of the Guarantor. The Guarantor agrees that this
Guaranty Agreement may be enforced by the Agent and the Lenders without the
necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the
Borrower or any other Person under the Credit Agreement or any collateral now
or hereafter securing the Borrower's Obligations or otherwise, and the
Guarantor hereby waives the right to require the Agent and the Lenders to
proceed against the Borrower or any other Person (including a co-guarantor) or
to require the Agent and the Lenders to pursue any other remedy or enforce any
other right. Without limiting the generality of the foregoing, the Guarantor
hereby specifically waives, to the extent permitted by applicable law, the
benefits of North Carolina General Statutes Sections 26-7 through 26-9,
inclusive. In addition, the Guarantor agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower for
amounts paid under this Guaranty Agreement until such time as the Lenders have
been paid in full and no Person or Governmental Authority shall have any right
to request any return or reimbursement of funds from the Lenders in connection
with monies received under the Credit Documents. The Guarantor further agrees
that nothing contained herein shall prevent the Agent or the Lenders from suing
the Borrower with respect to its obligations under the Credit Agreement or
foreclosing any security interest in or lien on any collateral now or hereafter
securing the Borrower's
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Obligations or from exercising any other rights available to the Agent or the
Lenders under the Credit Agreement if neither the Borrower nor the Guarantor
timely performs the obligations of the Borrower thereunder, and the exercise of
any of the aforesaid rights and the completion of any foreclosure proceedings
shall not constitute a discharge of the Guarantor's obligations hereunder; it
being the purpose and intent of the Guarantor that the Guarantor's obligations
hereunder shall be absolute, irrevocable, independent and unconditional under
any and all circumstances. Neither the Guarantor's obligations under this
Guaranty Agreement nor any remedy for the enforcement thereof shall be
impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Borrower, by reason of the Borrower's bankruptcy or insolvency or by reason of
the invalidity or unenforceability of all or any portion of the Borrower's
Obligations. The Guarantor acknowledges that the term the "Borrower's
Obligations" as used herein includes any payments made by the Borrower to the
Agent or any Lender and subsequently recovered by the Borrower or a trustee for
the Borrower pursuant to the Borrower's bankruptcy or insolvency and that the
guaranty of the Guarantor hereunder shall be reinstated to the extent of such
recovery.
5. Attorneys' Fees and Costs of Collection. If at any time or times
hereafter the Agent or the Lenders employ counsel to pursue collection, to
intervene, to xxx for enforcement of the terms hereof or of the Credit
Agreement or any other of the Credit Documents, or to file a petition,
complaint, answer, motion or other pleading in any suit or proceeding relating
to this Guaranty Agreement, the Credit Agreement or any other of the Credit
Documents, then, in such event, all of the reasonable attorneys' fees relating
thereto shall be an additional liability of the Guarantor to the Agent and the
Lenders hereunder, payable on demand.
6. Security Interests and Setoff. As security for the Guarantor's
obligations hereunder, the Guarantor agrees that in the event the Guarantor
fails to pay its obligations hereunder when due and payable under this Guaranty
Agreement, (a) any of the Guarantor's assets of any kind, nature or description
(including, without limitation, deposit accounts) in the possession, control or
custody of the Agent or any Lender may, without prior notice (but promptly
confirmed in writing by the Agent or such Lender, as applicable, to the
Guarantor, provided that failure to provide such written confirmation will not
affect
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the liabilities of the Guarantor hereunder) to the Guarantor, be reduced to
cash or the like and applied by the Agent or such Lender in reduction or
payment of the Guarantor's obligations hereunder; and (b) the Agent and each
Lender shall have the right, immediately and without further action by them, to
set off pro tanto against the Borrower's Obligations all money owed by the
Agent or such Lender in any capacity to the Guarantor, whether or not due, and
the Agent or such Lender shall be deemed to have made a charge against any such
money immediately upon the occurrence of such obligation becoming due even
though such charge is made or entered on the books of the Agent or such Lender
subsequent thereto.
7. Term of Guarantee; Warranties; etc. This Guaranty Agreement shall
continue in full force and effect until the Borrower's Obligations are fully
and indefeasibly paid, performed and discharged. This Guaranty Agreement
covers the Borrower's Obligations whether presently outstanding or arising
subsequent to the date hereof including all amounts advanced by the Agent or
any Lender in stages or installments. The Guarantor warrants and represents to
the Agent (i) that the Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, (ii) that the Guarantor has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted, (iii) that the execution and
delivery by the Guarantor of this Guaranty Agreement and the performance by the
Guarantor of its obligations hereunder are within the corporate power of the
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official (except for any such action or filing that has been taken and is in
full force and effect) and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or bylaws (or other constitutional documents) of the Guarantor or
of any material agreement, judgment, injunction, order, decree, or other
material instrument binding upon the Guarantor or result in the creation or
imposition of any Lien on any asset of the Guarantor, (iv) that this Guaranty
Agreement constitutes the valid, binding and enforceable agreement of the
Guarantor and, when executed and delivered will constitute valid and binding
obligations of the Guarantor and (v) that the Incorporated Representations and
Warranties are true and correct in all material respects as of the Closing Date
(except for those
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which expressly relate to an earlier date). The Guarantor hereby covenants and
agrees that, so long as this Guaranty Agreement is in effect or any of the
Borrower's Obligations remain outstanding, the Guarantor shall comply with the
Incorporated Covenants.
8. Further Representations and Warranties. The Guarantor agrees that the
Agent and the Lenders will have no obligation to investigate the financial
condition or affairs of the Borrower for the benefit of the Guarantor or to
advise the Guarantor of any fact respecting, or any change in, the financial
condition or affairs of the Borrower which might come to the knowledge of the
Agent or any Lender at any time, whether or not the Agent or any Lender knows
or believes or has reason to know or believe that any such fact or change is
unknown to the Guarantor or might (or does) materially increase the risk of the
Guarantor as guarantor or might (or would) affect the willingness of the
Guarantor to continue as guarantor with respect to the Borrower's Obligations.
9. Additional Liability of the Guarantor. If the Guarantor is or becomes
liable for any indebtedness owing by the Borrower to the Agent or any Lender by
endorsement or otherwise other than under this Guaranty Agreement, such
liability shall not be in any manner impaired or reduced hereby but shall have
all and the same force and effect it would have had if this Guaranty Agreement
had not existed and the Guarantor's liability hereunder shall not be in any
manner impaired or reduced thereby.
10. Cumulative Rights. All rights of the Agent and the Lenders hereunder
or otherwise arising under any documents executed in connection with or as
security for the Borrower's Obligations are separate and cumulative and may be
pursued separately, successively or concurrently, or not pursued, without
affecting or limiting any other right of the Agent or any Lender and without
affecting or impairing the liability of the Guarantor.
11. Usury. Notwithstanding any other provisions herein contained, no
provision of this Guaranty Agreement shall require or permit the collection
from the Guarantor of interest in excess of the maximum rate or amount that the
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in reduction
of the Guarantor's obligations hereunder, and the remainder of
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such excess collected shall be returned to the Guarantor once such obligations
have been fully satisfied.
12. The Agent. In acting under or by virtue of this Guaranty Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Article IX of the Credit Agreement, all of which
provisions are incorporated by reference herein with the same force and effect
as if set forth herein. The Guarantor hereby releases the Agent from any
liability for any act or omission relating to this Guaranty Agreement, except
such as may result from the Agent's gross negligence or willful misconduct.
13. Successors and Assigns. This Guaranty Agreement shall be binding on
and enforceable against the Guarantor and its successors and assigns; provided
that the Guarantor may not assign or transfer any of its obligations hereunder
without prior written consent of the Lenders. This Guaranty Agreement is
intended for and shall inure to the benefit of the Agent and each Lender and
each and every person who shall from time to time be or become the owner or
holder of any of the Borrower's Obligations, and each and every reference
herein to "Agent" or "Lender" shall include and refer to each and every
successor or assignee of the Agent or any Lender at any time holding or owning
any part of or interest in any part of the Borrower's Obligations. This
Guaranty Agreement shall be transferable and negotiable with the same force and
effect, and to the same extent, that the Borrower's Obligations are
transferable and negotiable, it being understood and stipulated that upon
assignment or transfer by the Agent or any Lender of any of the Borrower's
Obligations the legal holder or owner of the Borrower's Obligations (or a part
thereof or interest therein thus transferred or assigned by the Agent or any
Lender) shall (except as otherwise stipulated by the Agent or any such Lender
in its assignment) have and may exercise all of the rights granted to the Agent
or such Lender under this Guaranty Agreement to the extent of that part of or
interest in the Borrower's Obligations thus assigned or transferred to said
person. The Guarantor expressly waives notice of transfer or assignment of the
Borrower's Obligations, or any part thereof, or of the rights of the Agent or
any Lender hereunder. Failure to give notice will not affect the liabilities
of the Guarantor hereunder.
14. Application of Payments. Each of the Agent and the Lenders may apply
any payments received by it from any source
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against that portion of the Borrower's Obligations (principal, interest, court
costs, attorneys' fees or other) in such priority and fashion as it may deem
appropriate.
15. Modifications. Subject to the terms of Section 10.08 of the Credit
Agreement, this Guaranty Agreement and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by the
Guarantor and the Agent.
16. Notices. Notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Guarantor, to it at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention of X. X. Xxxxxx, Treasurer (Facsimile No.
314-877-7729);
(b) if to the Agent, to it at 000 X. Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention of Xxxxxxx Xxxxx (Facsimile No.
312-234-5601);
With a copy to: NationsBank, N.A.
NationsBank Corporate Center, 0xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention of Agency Services
(Facsimile No. 704-386-9923)
All notices and other communications given to any party hereto in accordance
with the provisions of this Guaranty Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sender, or on the date five (5) Business Days
after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in
this Section 16 or at such other address or telex, telecopy or other number as
shall be designated by such party in a notice to each other party complying
with the terms of this Section 16.
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17. Severability. In the event that any provision hereof shall be deemed
to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
18. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial.
(a) THIS GUARANTY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA. The Guarantor hereby submits to the
non-exclusive jurisdiction of the United States District Court for the Western
District of North Carolina or the courts of the State of North Carolina in
Mecklenburg County for the purposes of any legal action or proceeding with
respect to this Guaranty Agreement. The Guarantor irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that such proceeding has been brought in an inconvenient form.
The Guarantor hereby consents to process being served in any such proceeding by
the mailing of a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to the address specified for notices to the Guarantor
pursuant to Section 16 or in any other manner permitted by law. Nothing herein
shall affect the right of the Agent to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against the Guarantor in any other jurisdiction.
(b) EACH OF THE AGENT, THE LENDERS AND THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
19. Headings. The headings in this instrument are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
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20. Counterparts. This Guaranty Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
constituting an original, but all together one and the same instrument.
21. Rights of the Required Lenders. All rights of the Agent hereunder, if
not exercised by the Agent, may be exercised by the Required Lenders.
22. Entirety. This Guaranty Agreement represents the entire agreement of
the parties hereto and supersedes all prior agreements and understandings, oral
or written, if any, including any commitment letters or correspondence,
relating to this Guaranty Agreement or the transactions contemplated herein.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty Agreement to be
duly executed as of the date first above written.
RALCORP HOLDINGS, INC.
By _______________________________
Title ____________________________
ACCEPTED:
NATIONSBANK, N.A., as Agent as aforesaid for
the Lenders
By _________________________________
Title ______________________________
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