Exhibit 10.10


 


 


PERSONAL
GUARANTY


 


BY


 










 


TO


 


CROWN BANK


 


 


Dated:  October 20, 2005


 


 


	
   

  	
  This instrument was
  drafted by:

  
	
   

  	
   

  
	
   

  	
  David E. Moran, Esq.

  
	
   

  	
  WINTHROP &
  WEINSTINE, P.A.

  
	
   

  	
  Suite 3500

  
	
   

  	
  225 South Sixth Street

  
	
   

  	
  Minneapolis, Minnesota
  55402

  
	
   

  	
  (612) 604-6400

  



 





















 


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 that certain Revolving Credit and
Term Loan Agreement of even date herewith by and between the Lender and the
Borrower (the “Credit Agreement”), and as evidenced by the Notes (as defined in
the Credit Agreement) the undersigned (the “Guarantor”) hereby:


 


1.             Unconditionally
and absolutely guarantees to the Lender:


 


a.             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 any and all renewals thereof including notes taken in substitution
therefor; and


 


b.             the
payment and performance by the Borrower of all of its obligations under and
pursuant to the Notes, the Credit Agreement, the other Loan Documents and any
and all documents related thereto;


 


(the Notes, the Credit
Agreement, the other Loan Documents and such other liability, indebtedness and
obligations are herein 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 Credit Agreement.


 


2.             Agrees
that the Lender may demand payment from the Guarantor of any installment (or
portion thereof) of principal or interest on the Note, 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 (as defined in the
Credit Agreement), or (ii) accelerated payment of either or both of the
Notes, or (iii) commenced repossession of, or foreclosure of any security
interest, mortgage or other lien in, any or all of the collateral securing
either or both of the Notes, or (iv) otherwise exercised its rights and
remedies hereunder or under either or both of the Notes, 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; 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


 


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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 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


 


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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 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; (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


 


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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 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 shall be limited to $100,000.00 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, whether or not in
excess of such amount, without affecting or impairing the Guarantor’s liability
hereunder, and the Lender may pay (or allow for the payment of) the excess out
of 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, and
such payment (or allowance) shall not reduce, affect, or impair the Guarantor’s
liability hereunder.  Any payment made by
the Guarantor under this Guaranty shall be effective to reduce or discharge
such liability only if accompanied by a written transmittal document, received
by the Lender, advising the Lender that such payment is made under this
Guaranty for such purpose.


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


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Dated as of this       
day of October, 2005.


 


 


 


	
  STATE OF MINNESOTA

  	
  )

  
	
   

  	
  ) ss

  
	
  COUNTY OF

  	
  )

  



 


The foregoing instrument
was acknowledged before me this       day of                ,
2005, by                           ,
a                    
individual.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public

  



 


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