Exhibit 10.4


 


 


 


 


AMENDED
AND RESTATED


PERSONAL
GUARANTY


 


BY


 






 


TO


 


CROWN BANK


 


 


Dated:  March 7, 2008


 


 

















 


PERSONAL
GUARANTY


 


In consideration of and in
order to induce Crown Bank, a Minnesota state banking corporation, with its
banking house located in Minneapolis, Minnesota (the “Lender”), to extend
financial accommodations to Southwest Casino and Hotel Corp., a Minnesota
corporation, (the “Borrower”), pursuant to a series of promissory notes dated
the same date as this Amended and Restated Guaranty and identified on Exhibit 1
to this Guaranty (the “Notes”) and that certain Line of Credit dated April 19,
2007 (the “Line of Credit”) all by and between the Lender and the Borrower, the
undersigned (the “Guarantor”) hereby amends and restates the Amended and Restated
Personal Guaranty between Lender and Borrow dated April 16, 2007 and
hereby:


 


1.             Unconditionally and absolutely
guarantees to the Lender the full and prompt payment, when due, whether at the
maturity dates specified therein or theretofore upon acceleration of maturity
pursuant to the provisions thereof, of principal, accrued interest and late
charges, if any, on the Notes and the Line of Credit, and any and all renewals
thereof including notes taken in substitution therefore (collectively referred to
as the “Obligations”); together with the full and prompt payment of any and all
costs and expenses of and incidental to the collection of the Obligations for
the enforcement of this Guaranty, including, without limitation, reasonable
attorneys’ fees.  All capitalized terms
not otherwise defined herein shall have the meaning assigned thereto in the
Notes or the Line of Credit.


 


2.             Agrees that the Lender may demand
payment from the Guarantor of any installment (or portion thereof) of principal
or interest on either the Notes or the Line of Credit, when due and unpaid, and
the Guarantor shall immediately pay the same to the Lender, and the Lender may
demand payment or performance of any or all of the other Obligations, when such
payment or performance is due or required (subject to any applicable grace
period), and the Guarantor shall immediately pay or perform the same, whether
or not the Lender has (i) declared an Event of Default, or (ii) accelerated
payment of the Notes or the Line of Credit, or (iii) commenced
repossession of, or foreclosure of any security interest, mortgage or other
lien in, any or all of the collateral securing the Notes or the Line of Credit,
or (iv) otherwise exercised its rights and remedies under this Guaranty or
under the Notes, the Line of Credit, the documents related thereto or
applicable law.


 


3.             Waives (i) presentment,
demand, notice of nonpayment, protest and notice of protest and dishonor on the
Obligations; (ii) notice of acceptance of this Guaranty by the Lender; and
(iii) notice of the creation or incurrence of the Obligations by the
Borrower.


 


4.             Agrees that the Lender may from
time to time, without notice to the Guarantor, which notice is hereby waived by
the Guarantor, extend, modify, renew or compromise the Obligations, in whole or
in part, without releasing, extinguishing or affecting in any manner whatsoever
the liability of the Guarantor hereunder, the foregoing acts being hereby
consented to by the Guarantor.


 


5.             Agrees that the Lender shall not be
required to first resort for payment to the Borrower or any other person,
corporation or entity, or their properties or estates, or any other right or
remedy whatsoever, prior to enforcing this Guaranty.


 





















 


6.             Agrees that this Guaranty shall be
construed as a continuing, absolute, and unconditional guaranty without regard
to (i) the validity, regularity or enforceability of the Obligations or
the disaffirmance thereof in any insolvency or bankruptcy proceeding relating
to the Borrower, or (ii) any event or any conduct or action of the
Borrower or the Lender or any other party which might otherwise constitute a
legal or equitable discharge of a surety or guarantor but for this provision.


 


7.             Agrees that this Guaranty shall
remain in full force and effect and be binding upon the Guarantor until the
Obligations are paid in full.


 


8.             Agrees that the Lender is expressly
authorized to forward or deliver any or all collateral and security which may
at any time be placed with it by the Borrower, the Guarantor or any other
person, directly to the Borrower for collection and remittance or for credit,
or to collect the same in any other manner and to renew, extend, compromise,
exchange, release, surrender or modify the installments of, any or all of such
collateral and security with or without consideration and without notice to the
Guarantor and without in any manner affecting the absolute liability of the
Guarantor hereunder; and that the liability of the Guarantor hereunder shall
not be affected or impaired by any failure, neglect or omission on the part of
the Lender to realize upon the Obligations, or upon any collateral or security
therefor, nor by the taking by the Lender of any other guaranty or guaranties
to secure the Obligations or any other indebtedness of the Borrower to the Lender,
nor by the taking by the Lender of collateral or security of any kind nor by
any act or failure to act whatsoever which, but for this provision, might or
could in law or in equity act to release or reduce the Guarantor’s liability
hereunder.


 


9.             Waives any right that the Guarantor
may have to collect or seek to collect from the Borrower the claim, if any, by
subrogation or otherwise, acquired by the Guarantor through payment of any part
or all of the Obligations until the Obligations have been paid in full.


 


10.           Agrees that the liability of the
Guarantor hereunder shall not be affected or impaired by the existence or
creation from time to time, with or without notice to the Guarantor, which
notice is hereby waived, of indebtedness from the Borrower to the Lender in
addition to the indebtedness evidenced by the Notes and the Line of Credit; the
creation or existence of such additional indebtedness being hereby consented to
by the Guarantor.


 


11.           Agrees that the possession of this
instrument of guaranty by the Lender shall be conclusive evidence of due
execution and delivery hereof by the Guarantor.


 


12.           Agrees that this Guaranty shall be
binding upon the legal representatives, successors and assigns of the
Guarantor, and shall inure to the benefit of the Lender and its successors,
assigns and legal representatives; that notwithstanding the foregoing, the
Guarantor shall not have the right to assign or otherwise transfer his rights
and obligations under this Guaranty to any third party without the prior written
consent of the Lender; and that any such assignment or transfer shall not
release or affect the liability of the Guarantor hereunder in any manner
whatsoever.


 


13.           Agrees that the Guarantor may be
joined in any action or proceeding commenced against the Borrower in connection
with or based upon the Obligations and recovery may be had against the
Guarantor in any such action or proceeding or in any independent action or
proceeding 


 


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against
the Guarantor should the Borrower fail to duly and punctually pay any of the
principal of or interest on the Obligations without any requirement that the
Lender first assert, prosecute or exhaust any remedy or claim against the
Borrower.


 


14.           Agrees that upon the occurrence at
any time of an Event of Default, the Lender shall have the right to set off any
and all amounts due hereunder by the Guarantor to the Lender against any
indebtedness or obligation of the Lender to the Guarantor.


 


15.           Agrees that the Guarantor shall be
liable to the Lender for any deficiency remaining after foreclosure of any
mortgage in real estate or any security interest in personal property granted
by the Borrower, the Guarantor or any third party to the Lender to secure
repayment of the Obligations and the subsequent sale by the Lender of the
property subject thereto to a third party (whether at a foreclosure sale or at
a sale thereafter by the Lender in the event the Lender purchases said property
at the foreclosure sale) notwithstanding any provision of applicable law which
may prevent the Lender from obtaining a deficiency judgment against, or
otherwise collecting a deficiency from, the Borrower including, without
limitation, Minnesota Statutes Section 582.30.


 


16.           Agrees that this Guaranty shall be
deemed a contract made under and pursuant to the laws of the State of Minnesota
and shall be governed by and construed under the laws of such state without
giving effect to the choice of law provisions thereof; and that, wherever
possible, each provision of this Guaranty shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of the Guaranty.


 


17.           Agrees that no failure on the part of
the Lender to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as or constitute a waiver thereof; nor shall any single or
partial exercise of any right or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right or remedy granted hereby or
by any related document or by law.


 


18.           Waives any and all claims against the
Lender and defenses to performance and payment hereunder relating in any way,
directly or indirectly, to the performance of the Lender’s obligations or
exercise of any of its rights under the Notes and the documents related
thereto.


 


19.           Warrants
and represents to the Lender as follows:


 


a.             Enforceability.  This
Guaranty constitutes the legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms (subject, as to enforceability, to
limitations resulting from bankruptcy, insolvency or other similar laws
affecting creditors’ rights generally).


 


b.             Litigation.  There
is no action, suit or proceeding pending or, to the knowledge of the Guarantor,
threatened against or affecting the Guarantor which, if adversely determined,
would have a Material Adverse Effect (as defined in the Credit Agreement) on
the Guarantor, or which would question the validity of this Guaranty or any 


 


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instrument,
document or other agreement related hereto or required hereby, or impair the
ability of the Guarantor to perform his obligations hereunder or thereunder.


 


c.             Default.  The
Guarantor is not in default of a material provision under any material
agreement, instrument, decree or order to which he is a party or by which he or
his property is bound or affected.


 


d.             Consents.  To
the Guarantor’s knowledge, no consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any governmental
authority or any third party is required in connection with the execution and
delivery of this Guaranty or any of the agreements or instruments herein
mentioned to which the Guarantor is a party or the carrying out or performance
of any of the transactions required or contemplated hereby or thereby or, if
required, such consent, approval, order or authorization has been obtained or
such registration, declaration or filing has been accomplished or such notice
has been given prior to the date hereof.


 


e.             Taxes.  The
Guarantor has filed all tax returns required to be filed and has paid all taxes
shown thereon to be due, including interest and penalties, which are not being
contested in good faith and by appropriate proceedings and has no information
or knowledge of any objections to or claims for additional taxes in respect of
federal income or excess profits tax returns for prior years.


 


20.           Agrees that the liability of the
Guarantor and any other guarantor of the Obligations shall be joint and
several.


 


21.           Agrees to deliver to the Lender
financial information and related documents as set forth in Section 5.1 of
the Credit Agreement with respect to the Guarantor.


 


22.           Agrees that (i) the Guarantor
will indirectly benefit by and from the making of the loans by the Lender to
the Borrower evidenced by the Notes and the Line of Credit; (ii) the
Guarantor has received legal and adequate consideration for the execution of
this Guaranty and has executed and delivered this Guaranty to the Lender in
good faith in exchange for reasonably equivalent value (including, without
limitation, receiving warrants issued by the Borrower in consideration and
exchange for the execution of this Guaranty); (iii) the Guarantor is not
presently insolvent and will not be rendered insolvent by virtue of the
execution and delivery of this Guaranty; (iv) the Guarantor has not
executed or delivered this Guaranty with actual intent to hinder, delay or
defraud the Guarantor’s creditors; and (v) the Lender has agreed to make
such loans in reliance upon this Guaranty.


 


23.           Agrees that if, at any time, all or
any part of any payment previously applied by the Lender to any of the
Obligations must be returned by the Lender for any reason, whether by court
order, administrative order or settlement, the Guarantor shall remain liable
for the full amount returned as if said amount had never been received by the
Lender, notwithstanding any term of this Guaranty or the cancellation or return
of any note or other agreement evidencing the Obligations.


 


24.           Irrevocably submits to the
jurisdiction of any Minnesota state court or federal court over any action or
proceeding arising out of or relating to this Guaranty, the Notes and any 


 


4

















 


instrument,
agreement or document related thereto; agrees that all claims in respect of
such action or proceeding may be heard and determined in such Minnesota state
or federal court; irrevocably waives, to the fullest extent he may effectively
do so, the defense of an inconvenient forum to the maintenance of such action
or proceeding; irrevocably consents to the service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding by the mailing by United States certified mail, return receipt
requested, of copies of such process to the Guarantor’s last known address; and
agrees that judgment final by appeal, or expiration of time to appeal without
an appeal being taken, in any such action or proceeding shall be conclusive and
may be enforced in any other jurisdictions by suit on the judgment or in any
other manner provided by law; provided that nothing in this paragraph shall
affect the right of the Lender to serve legal process in any other manner permitted
by law or affect the right of Lender to bring any action or proceeding against
the Guarantor or his property in the courts of any other jurisdiction to the
extent permitted by law.


 


25.           THE
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO THIS
GUARANTY.


 


26.           Notwithstanding the aggregate amount
of the Obligations which may from time to time be outstanding, the Guarantor’s
liability hereunder with respect to the Promissory Notes and the Line of Credit
shall be limited to an aggregate of $250,000.00 plus all attorney’s fees,
collection costs and enforcement expenses incurred in connection with the
enforcement of this Guaranty.  The
Obligations may be created and continued in any amount without affecting or
impairing the Guarantor’s liability hereunder, and the Lender may apply any
sums received by or available to the Lender on account of the Obligations from
the Borrower or any other person (except the Guarantor) from their properties,
out of any collateral security, or from any other source, to the Obligations in
any manner as the Lender may determine in its sole discretion, and such
payment, allowance or application shall not reduce, affect, or impair the
Guarantor’s liability hereunder.  Any
payment made by the Guarantor under this Guaranty shall be applied by the
Lender to the Obligations in the Lender’s sole discretion.


 


Remainder of Page Intentionally Blank


Signatures
on Next Page


 


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Signature Page for


Personal
Guarantee


 


Dated
as of this 7th day of March 2008.


 


	
   

  	
   

  



 


 


	
  STATE OF MINNESOTA

  	
  )

  
	
   

  	
  ) ss

  
	
  COUNTY OF

  	
   

  	
  )

  
			



 


The
foregoing instrument was acknowledged before me this
           day of January 2008,
by                           ,
a                          
individual.


 


	
   

  	
   

  
	
   

  	
  Notary Public