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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 any
other Loan Documents to which such Guarantor is a party) and
demands to which such Guarantor might otherwise be
entitled.
(b)
To the fullest extent permitted by applicable law,
each Guarantor hereby w
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