Exhibit 10.11
GENERAL CONTINUING
GUARANTY
This GENERAL CONTINUING
GUARANTY (this “ Guaranty ”), dated as of
December , 2006, is executed and delivered by
BLACK GAMING, LLC, a Nevada limited liability company
(“ Black Gaming ”) and R. BLACK, INC. , a
Nevada corporation (“ Black ”; Black Gaming and
Black each, a “ Guarantor ”, and collectively,
jointly and severally, the “ Guarantors ”),
in favor of WELLS FARGO FOOTHILL, INC., a California
corporation, as arranger and administrative agent for the below
defined Lenders (in such capacity, together with its successors and
assigns, if any, in such capacity, “ Agent ”),
in light of the following:
WHEREAS , B & B B, INC., a Nevada corporation
(“ B&BB ”), CASABLANCA RESORTS, LLC, a
Nevada limited liability company (“ CBR ”),
OASIS INTERVAL MANAGEMENT, LLC, a Nevada limited liability company
(“ OIM ”), OASIS INTERVAL OWNERSHIP, LLC, a
Nevada limited liability company (“ OIO ”),
OASIS RECREATIONAL PROPERTIES, INC., a Nevada corporation (“
ORP ”), RBG, LLC, a Nevada limited liability company
(“ RBG ”), and VIRGIN RIVER CASINO CORPORATION,
a Nevada corporation (“ VRCC ”; B&BB, CBR,
OIM, OIO, ORP, RBG, and VRCC, are referred to hereinafter each
individually as a “ Borrower ”, and individually
and collectively, jointly and severally, as the “
Borrowers ”), Agent, and the lenders identified on the
signature pages thereto (such lenders, together with their
respective successors and permitted assigns, are referred to
hereinafter each individually as a “ Lender ”
and collectively as the “ Lenders ”), entered
into that certain Credit Agreement, dated as of December 20, 2004
(as amended, restated, modified, renewed or extended from time to
time, the “ Credit Agreement ”);
WHEREAS , each Guarantor is an Affiliate of Borrowers
and, as such, will benefit by virtue of the financial
accommodations extended to Borrowers by the Lender
Group;
WHEREAS , contemporaneously herewith, each Guarantor is
entering into that certain Joinder Agreement and Amendment whereby
each Guarantor is joining the Credit Agreement, Security Agreement,
and Intercompany Subordination Agreement; and
WHEREAS , in order to induce the Lender Group to
continue to extend the financial accommodations to Borrowers
pursuant to the Credit Agreement, and in consideration thereof, and
in consideration of any loans or other financial accommodations
heretofore or hereafter extended by the Lender Group to Borrowers,
whether pursuant to the Credit Agreement or otherwise, the
Guarantors have, jointly and severally, agreed to guaranty the
Guarantied Obligations.
NOW, THEREFORE
, in consideration of the foregoing,
each Guarantor hereby agrees as follows:
1.
Definitions and
Construction .
(a)
Definitions
. Capitalized terms used
herein and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement. The following
terms, as used in this Guaranty, shall have the following
meanings:
“ Agent ” has the
meaning set forth in the preamble to this Guaranty.
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“ Borrower ” and
“ Borrowers ” have the respective meanings set
forth in the recitals to this Guaranty.
“ Credit Agreement
” has the meaning set forth in the recitals to this
Guaranty.
“ Guarantied
Obligations ” means the due and punctual payment, whether
at stated maturity, by acceleration or otherwise, of all
Obligations of the Borrowers now or hereafter existing under any
Loan Document, whether for principal, interest (including all
interest that accrues after the commencement of any Insolvency
Proceeding irrespective of whether a claim therefor is allowed in
such case or proceeding), fees, expenses or otherwise, and any and
all expenses (including reasonable counsel fees and expenses)
incurred by the Agent, the Lenders or the Underlying Issuer (or any
of them) in enforcing any rights under this Guaranty. Without
limiting the generality of the foregoing, Guarantied Obligations
shall include all amounts that constitute part of the Guarantied
Obligations and would be owed by the Borrowers to the Agent, the
Lenders or the Underlying Issuer under any Loan Document but
for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding
involving any Loan Party.
“ Guarantor ” and
“ Guarantors ” have the respective meanings set
forth in the recitals to this Guaranty.
“ Guaranty ” has
the meaning set forth in the preamble to this Guaranty.
“ Lenders ”
means, individually and collectively, each of the lenders
identified on the signature pages to the Credit Agreement, and
shall include any other Person made a party to the Credit Agreement
in accordance with the provisions of Section 13.1 thereof
(together with their respective successors and assigns).
“ Lender Group ”
means, individually and collectively, each of the Lenders and
Agent.
“ Voidable
Transfer ” has the meaning set forth in
Section 9 of this Guaranty.
(b)
Construction
. Unless the context of this
Guaranty clearly requires otherwise, references to the plural
include the singular, references to the singular include the
plural, the terms “includes” and
“including” are not limiting, and the term
“or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase
“and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and similar terms in this Guaranty refer
to this Guaranty as a whole and not to any particular provision of
this Guaranty. Section, subsection, clause, schedule, and
exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth
herein). Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed against the Lender Group, any
Borrower, or any Guarantor, whether under any rule of construction
or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and
interpreted
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according to the ordinary meaning of
the words used so as to accomplish fairly the purposes and
intentions of all parties hereto. Any reference herein to the
satisfaction or payment in full of the Guarantied Obligations shall
mean the payment in full in cash (or cash collateralization in
accordance with the terms of the Credit Agreement) of all
Guarantied Obligations other than contingent indemnification
Guarantied Obligations and other than any Bank Product Obligations
that, at such time, are allowed by the applicable Bank Product
Provider to remain outstanding and are not required to be repaid or
cash collateralized pursuant to the provisions of the Credit
Agreement and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement and
any other Loan Document. Any reference herein to any Person
shall be construed to include such Person’s successors and
assigns. Any requirement of a writing contained herein shall
be satisfied by the transmission of a Record and any Record
transmitted shall constitute a representation and warranty as to
the accuracy and completeness of the information contained
therein.
2.
Guarantied
Obligations .
Each Guarantor hereby irrevocably and unconditionally, jointly and
severally, guaranties to Agent, for the benefit of the Lender Group
and the Bank Product Providers, as and for its own debt, until
final payment in full thereof has been made, (a) the payment of the
Guarantied Obligations, when and as the same shall become due and
payable, whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of
each Guarantor that the guaranty set forth herein shall be a
guaranty of payment and not a guaranty of collection; and
(b) the punctual and faithful performance, keeping,
observance, and fulfillment by Borrowers of all of the agreements,
conditions, covenants, and obligations of Borrowers contained in
the Credit Agreement and under each of the other Loan
Documents.
3.
Continuing Guaranty Joint and
Several . This
Guaranty includes Guarantied Obligations arising under successive
transactions continuing, compromising, extending, increasing,
modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied
Obligations after prior Guarantied Obligations have been satisfied
in whole or in part. To the maximum extent permitted by law,
each Guarantor hereby waives any right to revoke this Guaranty as
to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges
and agrees that (a) no such revocation shall be effective
until written notice thereof has been received by Agent,
(b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent
continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions
thereof), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Agent in
existence on the date of such revocation, (d) no payment by
any Guarantor, a Borrower, or from any other source, prior to the
date of such revocation shall reduce the maximum obligation of the
Guarantors hereunder, and (e) any payment by a Borrower or
from any source other than the Guarantors subsequent to the date of
such revocation shall first be applied to that portion of the
Guarantied Obligations as to which the revocation is effective and
which are not, therefore, guarantied hereunder, and to the extent
so applied shall not reduce the maximum obligation of the
Guarantors hereunder. Each Guarantor, jointly and severally,
hereby irrevocably and unconditionally accepts joint and several
liability with the other Guarantor, with respect to the payment and
performance of all of the Guarantied Obligations, it
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being the intention of the parties
hereto that all the Guarantied Obligations shall be the joint and
several obligations of each Guarantor without preferences or
distinction among them.
4.
Performance Under this
Guaranty . In
the event that a Borrower fails to make any payment of any
Guarantied Obligations, on or prior to the due date thereof, or if
a Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section
2 of this Guaranty in the manner provided in the Credit
Agreement or any other Loan Document, the Guarantors immediately
shall, jointly and severally, cause, as applicable, such payment to
be made or such obligation to be performed, kept, observed, or
fulfilled. If and to the extent that any Guarantor shall fail to
make any payment with respect to any of the Guarantied Obligations
as and when due or to perform any of the Guarantied Obligations in
accordance with the terms hereof, then in each such event the other
Guarantors will make such payment with respect to, or perform such
Guarantied Obligation.
5.
Primary
Obligations .
This Guaranty is a primary and original obligation of each
Guarantor, is not merely the creation of a surety relationship, and
is an absolute, unconditional, and continuing guaranty of payment
and performance which shall remain in full force and effect without
respect to future changes in conditions of any Borrower or any
Guarantor. Each Guarantor hereby agrees that it is directly,
jointly and severally with each other Guarantor and with any other
guarantor of the Guarantied Obligations, liable to Agent, for the
benefit of the Lender Group and the Bank Product Providers, that
the obligations of each Guarantor hereunder are independent of the
obligations of any Borrower or any other guarantor, and that a
separate action may be brought against each Guarantor, whether such
action is brought against such Borrower or any other guarantor or
whether any Borrower or any other guarantor is joined in such
action. Each Guarantor hereby agrees that its liability
hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by any member of the Lender Group or any
Bank Product Provider of whatever remedies they may have against
any Borrower, any other Guarantor, or the enforcement of any lien
or realization upon any security by any member of the Lender Group
or any Bank Product Provider. Each Guarantor hereby agrees
that any release which may be given by Agent to any Borrower, any
other Guarantor or any other guarantor shall not release such
Guarantor. Each Guarantor consents and agrees that no member
of the Lender Group nor any Bank Product Provider shall be under
any obligation to marshal any property or assets of any Borrower,
any other Guarantor or any other guarantor in favor of any
Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6.
Waivers
.
(a)
To the fullest extent permitted by
applicable law, each Guarantor hereby waives: (i) notice of
acceptance hereof; (ii) notice of any loans or other financial
accommodations made or extended under the Credit Agreement, or the
creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations,
subject, however, to such Guarantor’s right to make inquiry
of Agent to ascertain the amount of the Guarantied Obligations at
any reasonable time; (iv) notice of any adverse change in the
financial condition of any Borrower or any Guarantor or of any
other fact that might increase Guarantor’s risk hereunder;
(v) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument among the Loan Documents;
(vi) notice of any Default or Event of Default under the
Credit Agreement; and (vii) all other notices (except if such
notice is specifically required to
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be given to Guarantors under this
Guaranty or
