EXHIBIT 10.10
GUARANTY
(By Organization)
Date
December 22, 1998
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(herein, with its participants, successors and assigns, called "Bank"), at its
option, at any time or from time to time to make loans or extend other
accommodations to or for the account of LTCAMERICA HOLDING, INC. (herein called
"Borrower") or to engage in any other transactions with Borrower, the
undersigned a Minnesota corporation hereby absolutely and unconditionally
guarantees to the Bank the full and prompt payment when due, whether at maturity
or earlier by reason of acceleration or otherwise, of the debts, liabilities and
obligations described as follows:
a. If this ___ is checked, the undersigned guarantees to Bank the
payment and performance of each and every debt, liability and
obligation of every type and description which Borrower may
now or any time hereafter owe to Bank (whether such debt,
liability or obligation now exists or is hereafter created or
incurred, and whether it is or may be direct or indirect, due
or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, joint, several, or
joint and several; all such debts, liabilities and obligations
being hereinafter collectively referred to as "Indebtedness").
b. If this _X_ is checked, the undersigned guarantees to Bank the
payment and performance of the debt, liability or obligation
of Borrower to Bank evidenced by or arising out of the
following:
The Credit Agreement between Bank and Borrower dated
December 22, 1998 and the Revolving Note, as described
therein, in a principal amount not to exceed $15,000,000
plus accrued interest Thereon as provided in such Credit
Agreement and Revolving Note
and any extensions, renewals, replacements or modifications thereof
(hereinafter referred to as "Indebtedness").
The undersigned further acknowledges and agrees with Bank that:
1. No act or thing need occur to establish the liability of the
undersigned hereunder, and no act or thing, except full payment and
discharge of all the Indebtedness, shall in any way exonerate the
undersigned or modify, reduce, limit or release the liability of the
undersigned hereunder.
2. If paragraph A is checked, this is an absolute, unconditional and
continuing guaranty of payment of the Indebtedness and shall continue
to be in force and be binding upon the undersigned, whether or not all
Indebtedness is paid in full, until this Guaranty is revoked
prospectively as to future transactions, by written notice actually
received by the Bank, and such revocation shall not be effective as to
Indebtedness existing or committed for at the time of actual receipt of
such notice by the Bank, or as to any renewals, extensions and
refinancings thereof. The undersigned represents and warrants to the
Bank that the undersigned has a direct and substantial economic
interest in Borrower and expects to derive substantial benefits
therefrom and from any loans and financial accommodations resulting in
the creation of Indebtedness guaranteed hereby, and that this Guaranty
is given for a purpose that directly benefits the undersigned. The
undersigned agrees to rely exclusively on the right to revoke this
Guaranty prospectively as to future transactions, in accordance with
this paragraph, if at any time, in the opinion of the authorized
representative(s) of the undersigned, the benefits to the undersigned
then being received by the undersigned in connection with this Guaranty
are not sufficient to warrant the continuance of this Guaranty as to
future Indebtedness. Accordingly, so long as this Guaranty is not
revoked prospectively in accordance with this paragraph, the Bank may
rely conclusively on a continuing warranty, hereby made, that the
undersigned continues to be benefited by this Guaranty and the Bank
shall have no duty to inquire into or confirm the receipt of any such
benefits, and this Guaranty shall be effective and enforceable by the
Bank without regard to the receipt, nature or value of any such
benefits.
3. If the undersigned (i) shall be dissolved or liquidated; or (ii) shall
be or become insolvent (however defined); or (iii) have a garnishment,
levy or writ of attachment, or any local, state or federal notice of
tax lien or levy served upon the Bank for attachment of property of the
guarantor that is in the Bank's possession or for indebtedness owed to
the guarantor by the Bank; or (iv) a custodian, trustee or receiver is
appointed, with or without the guarantor's consent, for any of the
guarantor's properties, or (v) the undersigned changes its legal form
of organization, without the Bank's consent; then the Bank shall have
the right to declare immediately due and payable, and the undersigned
will forthwith pay to the Bank, the full amount of all Indebtedness,
whether due and payable or unmatured. If the undersigned voluntarily
commences or there is commenced involuntarily against the undersigned a
case under the United States Bankruptcy Code, the fWl amount of all
Indebtedness, whether due and payable or unmatured, shall be
immediately due and payable without demand or notice thereof.
4. The liability of the undersigned hereunder shall be a principal amount
of $15,000,000.00, plus accrued interest thereon plus all attorneys'
fees, collection costs and enforcement expenses referable thereto.
Indebtedness may be created and continued in any amount, whether or not
in excess of such principal amount, without affecting or impairing the
liability of the undersigned hereunder. The Bank may apply any sums
received by or available to the Bank on account of the Indebtedness
from Borrower or any other person (except the undersigned), from their
properties, out of any collateral security or from any other source to
payment of the excess. Such application of receipts shall not reduce,
affect or impair the liability of the undersigned hereunder, If the
liability of the undersigned is limited to a stated amount pursuant to
this paragraph, any payment made by the undersigned under this Guaranty
shall be effective to reduce or discharge such liability only if
accompanied by a written transmittal document, received by the Bank,
advising the Bank that such payment is made under this Guaranty for
such purpose.
5. The undersigned will not exercise or enforce any right of contribution,
reimbursement, recourse or subroation available to the undersigned
against any person liable for payment of the Indebtedness, or as to any
collateral security therefor, unless and until all of the Indebtedness
shall have been fully paid and discharged.
6. The undersigned will pay or reimburse the Bank for all costs and
expenses (including reasonable attorneys' fees and legal expenses)
incurred by the Bank in connection with the protection, defense or
enforcement of this Guaranty in any litigation or bankruptcy or
insolvency proceedings.
7. Whether or not any existing relationship between the undersigned and
Borrower has been changed or ended and whether or not this Guaranty has
been revoked, the Bank may, but shall not be obligated to, enter into
transactions resulting n the creation or continuance of Indebtedness,
without any consent or approval by the undersigned and without any
notice to the undersigned. The liability of the undersigned shall not
be affected or impaired by any of the following acts or things (which
the Bank is expressly authorized to do. omit or suffer from time to
time, both before and after revocation of this Guaranty, without notice
to or approval by the undersigned): (i) any acceptance of collateral
security, guarantors, accommodation parties or sureties for any or all
of the Indebtedness; (ii) any one or more extensions or renewals of
Indebtedness (whether or not for Ion-er than the original period) or
anv modification of the interest rates, maturities or other contractual
terms applicable to any Indebtedness; (iii) any waiver or indulgence
granted to Borrower, any delay or lack of diligence in the enforcement
of Indebtedness, or any failure to institute proceedings, file a claim,
-ive any required notices or otherwise protect any Indebtedness; (iv)
any full or partial release of, settlement with, or agreement not to
▇▇▇, Borrower or any other guarantor or other person liable in respect
of any Indebtedness; (v) any discharge of any evidence of Indebtedness
or the acceptance of any instrument in renewal thereof or substitution
therefor; (vi) any failure to obtain collateral security (including
rights of setoff) for the Indebtedness, or to see to the proper or
sufficient creation and perfection thereof, or to establish the
priority thereof, or to protect, insure, or enforce any collateral
security; or any modification, substitution, discharge, impairment, or
loss of any collateral security; (vii) any foreclosure or enforcement
of any collateral security; (viii) any transfer of any Indebtedness or
any evidence thereof, (ix) any order of application of any payments or
credits upon Indebtedness; and (x) any election by the Bank underss.I I
I I (b)(2) of the United States Bankruptcy Code.
8. The undersigned waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the
Generality of the foregoing, the undersigned will not assert, plead or
enforce against the Bank any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available
to Borrower or any other person liable in respect of any Indebtedness,
or any setoff available against the Bank to Borrower or anv such other
person, whether or not on account of a related transaction. The
undersigned expressly agrees that the undersigned shall be and remain
liable for any deficiency remaining, after foreclosure of any mortgage
or security interest securing the Indebtedness, whether or not the
liability of Borrower or any other obligor for such deficiency is
discharged pursuant to statute or judicial decision.
9. The undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing,
Indebtedness. The Bank shall not be required first to resort for
payment of Indebtedness to Borrower or other persons or their
properties, or first to enforce, realize upon or exhaust any collateral
security for Indebtedness, before enforcing this Guaranty.
10. If any payment applied by the Bank to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or
reorganization of Borrower or any other obligor), the Indebtedness to
which such payment was applied shall for the purposes of this Guaranty
be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such
Indebtedness as fully as if such application had never been made.
11. The liability of the undersigned under this Guaranty is in addition to
and shall be cumulative with all other liabilities of the undersigned
to the Bank as guarantor or otherwise, without any limitation as to
amount, unless the instrument or agreement evidencing or creating such
other liability specifically provides to the contrary. While the
undersigned has any liability to the Bank under this Guaranty, the
undersigned agrees to provide to the Bank the undersigned's annual
financial statements and such other financial information as the Bank
may request.
12. The undersigned represents and warrants to the Bank that (i) the
undersigned is duly organized and existing in good standing and has
full power and authority to make and deliver this Guaranty; (ii) the
execution, delivery and performance of this Guaranty by the undersigned
have been duly authorized by all necessary action of its governing body
and do not and will not violate the provisions of, or constitute a
default under, any presently Applicable law or its organizational
documents or any agreement presently binding on it; (iii) this Guaranty
has been duly executed and delivered by the authorized
representative(s) of the undersigned and constitutes its lawful,
binding and legally enforceable obligation (subject to the United
States Bankruptcy Code and other similar laws Generally affecting the
enforcement of creditors' rights); and (iv) the authorization,
execution, delivery and performance of this Guaranty do not require
notification to, registration with, or consent or approval by, any
federal, state or local regulatory body or administrative agency.
13. This Guaranty shall be effective upon delivery to the Bank, without
further act, condition or acceptance by the Bank, shall be binding upon
the undersigned and the successors and assigns of the undersigned and
shall inure to the benefit of the Bank and its participants, successors
and assigns. Any invalidity or unenforceability of any provision or
application of this Guaranty shall not affect other lawful provisions
and applications hereof, and to this end the provisions of this
Guaranty are declared to be severable. This Guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by
a writing signed by the undersigned and the Bank. This Guaranty is
issued in the state set forth above and shall be governed by its laws.
The undersigned waives notice of the Bank's acceptance hereof and
waives the right to a trial by jury in any action based on or
pertaining to this Guaranty.
14. Notwithstanding- the terms of this Guaranty to the contrary, upon the
occurrence and during the continuance of any Event of Default under the
Credit Agreement, the Bank, by its acceptance of this Guaranty, agrees
to provide written notice thereof to the undersigned. Within 10 Banking
Days, as such ten-n is defined in the Credit Agreement, after receipt
of such notice, the undersigned may, but shall not be required to,
notify the Bank of its intent to purchase the obligations of the
Borrower to the Bank under the Credit Agreement and the Revolving Note
from the Bank, without recourse. Prior to the expiration of such 1O
Banking- Days period, the Bank by its acceptance of this Guaranty,
agrees that it will not exercise any other right or remedy under the
Credit Agreement, the Revolving- Note, this Guaranty or any related
document. The undersigned's purchase of such obligations of the
Borrower shall occur within 30 calendar days of the undersigned's
notice to the Bank of its intent to purchase such obligations, and
during, such period, the Bank shall not be entitled to exercise any
other right or remedy under the Credit Agreement, the Revolving Note,
this Guaranty or any related document.
Upon receipt by the Bank of payment of the Indebtedness, the Bank, by
its acceptance of this Guaranty, agrees that it shall assign the Credit
Agreement, the Revolving Note, and each related document to the
undersigned, pursuant to agreements and instruments reasonably
requested by the undersigned, whereupon this Guaranty shall be
terminated and of no further force or effect.
15. The undersigned represent and warrants to the Bank that the financial
statements of the undersigned for the fiscal year end in December 31,
1997, prepared by the undersigned and accompanied by an opinion of a
certified public accountant, and for the period ending June 30, 1998
prepared by the undersigned, copies of which financial statements have
been furnished to the Bank, and present fairly the financial condition
of the undersigned as of such dates, and the results of their
operations for the periods covered thereby in accordance with Generally
Accepted Accounting Principles. There has been no change which
constitutes a Material Adverse Effect, since June 30, 1998. "Material
Adverse Effect" means a material adverse effect on (i) the business.
Property, condition (financial or otherwise), results of operations, or
prospects of the undersigned, (ii) the ability of the undersigned to
perform its obligations under this Guaranty, or (iii) the validity or
enforceability of this Guaranty or the rights or remedies of the Bank
thereunder.
16. The undersigned acknowledges that it has reviewed the Credit Agreement
described in the introductory section of this Guaranty and is aware of
and has no objection to the terms and conditions thereof.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
This Guaranty is _X_ unsecured; __ secured by a(n) ______ dated ______.
Signatures
Guarantor's Name
ALLIANZ LIFE INSURANCE COMPANY
OF NQRTH AMERICA, INC.
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name and Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name and Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Secretary
Street Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇ Code: ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇