FORBEARANCE AGREEMENT
Exhibit 10.1
THIS FORBEARANCE AGREEMENT (this “Agreement”), dated as of the 19th day of February, 2009 (the
"Execution Date”), is entered into by and among Virgin River Casino Corporation, a Nevada
corporation (“Virgin River”), RBG, LLC, a Nevada limited liability company (“RBG”), B & BB, Inc., a
Nevada corporation (“B&BB” and, together with Virgin River and RBG, the “Issuers”), Casablanca
Resorts, LLC, a Nevada limited liability company (“Casablanca”), Oasis Interval Ownership, LLC, a
Nevada limited liability company (“Oasis Ownership”), Oasis Interval Management, LLC, a Nevada
limited liability company (“Oasis Management”), Oasis Recreational Properties, Inc., a Nevada
corporation (“Oasis Recreational”), Black Gaming, LLC, a Nevada limited liability company (“Black
Gaming”), R. Black, Inc., a Nevada corporation (“R. Black” and, together with Casablanca, Oasis
Ownership, Oasis Management, Oasis Recreational, and Black Gaming, the “Guarantors” and, together
with the Issuers, the “Obligors”) and Drawbridge Special Opportunities Advisors LLC, as agent on
behalf of certain funds and accounts (“Drawbridge”), BlackRock Financial Management, Inc. High
Yield Group, as investment advisors/sub-advisors for certain accounts (“BlackRock”), Midland
National Life Insurance Company and 1888 FUND, LTD. (collectively, “Guggenheim”) and Silver Point
Capital Offshore Fund Ltd. (“Silver Point” and, together with Drawbridge, BlackRock and Guggenheim,
the “Majority Note Holders”).
RECITALS
A. The Issuers and The Bank of New York Trust Company, N.A., a national banking association
(the “Trustee”), have entered into that certain Indenture dated as of December 20, 2004 (together
with all supplements thereto, the “Indenture”), whereby the Issuers issued 9.000% Senior Secured
Notes due in 2012 in the aggregate principal amount of $125,000,000 for the benefit of the Holders
thereof (together with all modifications, extensions, renewals and replacements thereof, if any,
the “Senior Secured Notes”).
B. The Guarantors have each executed guarantees in favor of the Holders of the Senior Secured
Notes (collectively, the “Guarantees”), guaranteeing all of the Issuers’ obligations under the
Senior Secured Notes and the Indenture on the terms and conditions set forth in such Guarantees and
the Indenture. This Agreement, the Indenture, the Senior Secured Notes, the Guarantees, and all
mortgages, deeds of trust, security agreements, pledge agreements, control agreements, collateral
assignment agreements and all other agreements, instruments, and documents executed in connection
with the Indenture and Senior Secured Notes, including without limitation the Collateral
Agreements, are referred to collectively herein as the “Loan Documents”.
C. The next installment of interest payable on the Senior Secured Notes in the amount of Five
Million Six Hundred Twenty-Five Thousand Dollars ($5,625,000) (the “Interest Payment”) was due on
January 15, 2009 (the “Interest Due Date”), with a thirty (30) day grace period for the payment
thereof (the “Grace Period”).
D. Issuers did not make the Interest Payment on the Interest Due Date nor within the Grace
Period, which results in an Event of Default under the terms of the Indenture and the Senior
Secured Notes (the “Payment Default”).
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E. In addition to the Payment Default, certain covenant defaults or other Events of Default
may also occur under the Indenture on or after the Grace Period (the “Potential Other Defaults”
and, together with the Payment Default, the “Specified Defaults”).
F. In the event any Specified Default occurs, the Issuers have requested the Majority Note
Holders, and the Majority Note Holders have agreed, subject to and in accordance with the terms and
conditions set forth in this Agreement, to forbear from exercising any of their rights or remedies
under the Loan Documents and from taking any action to cause the Trustee to exercise any of the
Trustee’s rights or remedies with respect to the Specified Defaults, and, furthermore, in the event
Trustee does take any action with respect to any of the Specified Defaults, to the extent provided
for in the Loan Documents, to cause the Trustee to forbear from exercising any of its rights or
remedies under the Loan Documents, in each case, until the Scheduled Forbearance Termination Date
(as defined below) (subject to termination as set forth below).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter stated, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Recitals. Each of the Issuers hereby acknowledges and agrees that the recitals set
forth above are true and correct and that the total aggregate outstanding obligations under the
Indenture consists of the principal balance of the Senior Secured Notes as of the Execution Date of
$125,000,000, plus all accrued and unpaid interest thereon, and any other amounts that are due and
owing under the Loan Documents.
2. Defined Terms. All capitalized terms used herein (including, without limitation,
in the preamble and preliminary statements hereof) that are not otherwise defined shall have the
meanings ascribed to such terms in the Indenture or the Collateral Agreements, as applicable.
3. Reaffirmation of Loan Documents. Each of the Issuers hereby acknowledges and
reaffirms each and all of the Issuers’ obligations, duties, covenants and liabilities under the
Loan Documents, including, but not limited to, the obligation to pay all amounts due under the
Senior Secured Notes. Each of the Issuers further acknowledges and agrees that (i) the Loan
Documents are valid, binding and enforceable in accordance with their terms and remain in full
force and effect, (ii) the liens and security interests granted pursuant to the Collateral
Agreements are valid, perfected and enforceable liens, and all such liens and security interests
and all Collateral granted as security under the Collateral Agreements continues to be and remains
collateral for the indebtedness and obligations under the Indenture, and (iii) there are no claims,
demands, offsets or defenses at law or in equity that would defeat or diminish the Majority Note
Holders’ present and unconditional right to collect the indebtedness evidenced by the Senior
Secured Notes and to proceed to enforce the rights and remedies available to the Majority Note
Holders as provided in the Loan Documents or by law.
4. Reaffirmation of Guarantees. Each of the Guarantors hereby acknowledges and
reaffirms all of the Guarantors’ respective obligations, duties, covenants and liabilities under
the terms and conditions of the Guarantees, including, but not limited to, the obligation to pay
all amounts due under their respective Guarantees. Each of the Guarantors further acknowledges and
agrees that (i) the Guarantees are valid, binding and enforceable in accordance with their
respective terms and remain in full force and effect, and (ii) there are no claims, demands,
offsets or defenses at law or in equity that would defeat or diminish the Majority Note Holders’
present and unconditional right to collect the amounts due under the Guarantees and to proceed to
enforce the rights and remedies available to the Majority Note Holders as provided in the
Guarantees or by law.
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5. Forbearance.
(a) So long as none of the Issuers or Guarantors defaults under the terms of this Agreement,
and otherwise subject to the terms and conditions set forth herein, the Majority Note Holders agree
to forbear from exercising any of their rights or remedies under the Loan Documents and from taking
any action to cause the Trustee to exercise any of the Trustee’s rights or remedies, in each case,
arising out of the Specified Defaults during the period commencing on the Effective Date and
terminating on the Termination Date (as defined below) (the “Forbearance Period”). Furthermore, in
the event Trustee does take any action with respect to any of the Specified Defaults during the
Forbearance Period, to the extent provided for in the Loan Documents, Majority Note Holders shall
cause the Trustee to forbear from exercising any of its rights or remedies under the Loan
Documents. During the Forbearance Period, interest shall continue to accrue on the entire unrepaid
balance of the Senior Secured Notes and on the Interest Payment in accordance with Section 4.1 of
the Indenture and in the Senior Secured Notes. The “Termination Date” shall be the earlier to
occur of the Scheduled Forbearance Termination Date or the occurrence of a Forbearance Event
Default (as such terms are defined below).
(b) Notwithstanding anything to the contrary contained herein or in the Loan Documents, each
of the Obligors acknowledges and agrees that (i) except for the limited forbearance set forth
herein granted by the Majority Note Holders, the actions of each of the Majority Note Holders in
entering into this Agreement shall not constitute or be construed or deemed as (x) a waiver or
relinquishment of, or estoppel to assert, any rights or remedies under any of the Loan Documents,
applicable law or in equity, (y) a waiver of any Event of Default or Default under the Loan
Documents, or (z) an amendment, modification or consent to any non-compliance to any provision
under the Loan Documents; (ii) except as set forth herein, each of the Majority Note Holders
reserves the right to enforce each and every term of the Loan Documents; (iii) each of the Majority
Note Holders is under no duty or obligation of any kind or any nature to grant any of the Issuers
any additional period of forbearance beyond that provided herein; (iv) the actions of each of the
Majority Note Holders in entering into this Agreement are without prejudice to the right of each of
the Majority Note Holders to pursue any and all remedies under the Loan Documents, pursuant to
applicable law, or in equity available to it in its sole discretion upon the termination (whether
upon expiration thereof, upon acceleration, or otherwise) of this Agreement; (v) the Senior Secured
Notes will remain in default throughout the Forbearance Period and, but for this Agreement, the
Majority Note Holders would be entitled to exercise their rights and remedies under the Loan
Documents and applicable law in respect of the Specified Defaults; (vi) the Obligors have no
defenses, setoffs, or counterclaims against the Majority Note Holders or, alternatively, to the
extent that any defenses, setoffs, or counterclaims exist, the Obligors hereby waive any and all
defenses, setoffs, and counterclaims which they may have or claim to have in respect of the
obligations of the Obligors under the Loan Documents; and (vi) the Forbearance Period will expire
automatically and without notice immediately upon the occurrence, at any time prior to the
expiration of the Forbearance Period, of any breach, Default or Event of Default on the part of the
Issuers or Guarantors under this Agreement or, upon the expiration of the Forbearance Period.
(c) The Scheduled Forbearance Termination Date shall be March 9, 2009 (the “Scheduled
Forbearance Termination Date”), provided that (i) on or before March 2, 2009, the Issuers deliver
to Xxxxxx Xxxxxx & Co., Inc. (“Xxxxxx Xxxxxx”) and Cadwalader, Xxxxxxxxxx & Xxxx LLP (“CWT” and,
together with Xxxxxx Xxxxxx, the “Professional Advisors”) a summary of indicative terms and
conditions in respect of the restructuring of the obligations under the Indenture, the Credit
Agreement and any other Indebtedness (the “Term Sheet”) and (ii) on or before March 6, 2009, the
Issuers deliver to the Professional Advisors a 13-week cash flow forecast for the succeeding 13
calendar weeks in form and substance acceptable to the Professional Advisors.
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6. Cure. To the extent provided for in the Loan Documents, the Majority Note Holders
acknowledge and agree that the Issuers shall have the right to cure the Specified Defaults at any
time during the Forbearance Period by indefeasible payment of all Interest Payments and other
amounts due and owing under the Indenture, the Senior Secured Notes and the Loan Documents.
7. Representations and Warranties by Issuers and Guarantors. As a material inducement
for Majority Note Holders to enter into this Agreement, each of the Obligors hereby represent and
warrant to Majority Note Holders that:
(a) Each of the Issuers and Guarantors have full power and authority (and all necessary action
has been taken) to execute, deliver and perform its obligations under this Agreement, and that this
Agreement is binding upon and enforceable against each of the Issuers and Guarantors in accordance
with its terms.
(b) Each of the Issuers’ and Guarantors’ delivery and performance of this Agreement does not
and will not (i) violate any law, rule, regulation or court order to which any of the Issuers or
Guarantors are subject, or (ii) conflict with or result in a breach of the articles of formation,
bylaws, operating agreement or other formation document of any of the Issuers or Guarantors or any
agreement or instrument to which any of Issuers or Guarantors are a party or by which any of
Issuers or Guarantors are bound.
(c) As of the Execution Date, each of the Obligors do not have cash or cash equivalents in any
Deposit Account, Securities Account or any other bank account or similar account with a financial
institution other than with those institutions disclosed by the Obligors to either Xxxxxx Xxxxxx or
CWT and set forth on Schedule “A” hereof (the “Disclosed Banks”).
(d) Each of the representations and warranties made by all of the Obligors in the Loan
Documents are true, correct and complete as of the Execution Date in all material respects.
8. Representations and Warranties by the Majority Note Holders. Each of the Majority
Note Holders hereby represent and warrant to the Issuers and Guarantors that:
(a) Each of the Majority Note Holders have full power and authority (and all necessary action
has been taken) to execute, deliver and perform their obligations under this Agreement, and that
this Agreement is binding upon and enforceable against each of the Majority Note Holders in
accordance with its terms.
(b) Each of the Majority Note Holders’ delivery and performance of this Agreement does not and
will not (i) violate any law, rule, regulation or court order to which any of the Majority Note
Holders are subject, or (ii) conflict with or result in a breach of the articles of formation,
bylaws, operating agreement or other formation document of any of the Majority Note Holders or any
agreement or instrument to which any of Majority Note Holders are a party or by which any of
Majority Note Holders are bound.
(c) As of the Execution Date, the Majority Note Holders are the Holders of more than
seventy-five percent (75%) of the total aggregate outstanding principal amount of the Senior
Secured Notes.
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9. Release.
(a) In order to induce Majority Note Holders to enter into this Agreement, and in
consideration thereof, each of the Issuers and Guarantors, for themselves, their members and their respective successors and assigns (collectively, the “Issuers’ Parties”), hereby release
and discharge each of the Majority Note Holders, and their respective officers, directors,
shareholders, partners, agents, employees, servants, related corporations, subsidiaries,
affiliates, partnerships, or other entities related thereto and their attorneys and advisors
(collectively, the “Released Parties”) of and from any and all claims, liens, demands, causes of
action, controversies, offsets, obligations, losses, damages and liabilities of every kind and
character whatsoever, including, without limitation, any action, omission, misrepresentation or
other basis of liability founded either in tort or contract and the duties arising thereunder, that
the Issuers’ Parties, or any one or more of them, has had in the past, or now has, whether known or
unknown, whether asserted or unasserted, by reason of any matter, cause or thing set forth in,
relating to, or arising out of, or in any way connected with or resulting from the Loan Documents,
this Agreement and/or the transactions described in this Agreement.
(b) The Issuers’ Parties acknowledge that they may be unaware of one or more facts or may
hereafter discover facts in addition to or different from those which it has now or believes to be
true with respect to the subject matter of this release, the Loan Documents, this Agreement and/or
the transactions described in this Agreement, but it is the Issuers’ Parties’ intention to finally
and forever release any and all of the matters as set forth herein and, in furtherance of such
intention, the release herein given shall be and remain in effect notwithstanding the discovery of
any such additional or different facts. The Issuers’ Parties hereby acknowledge that no one has
made any promise, representation, or warranty whatsoever, express, implied or statutorily not
contained herein to induce them to execute this release in reliance on any promise, representation,
or warranty not contained herein and that they have been given the opportunity at all times to be
represented by an attorney and have been represented and advised by an attorney.
(c) Nothing in this Agreement, or in the discussions and negotiations of the parties which
preceded its execution, shall be directly or indirectly construed, or be admissible in any legal
action or proceeding or otherwise, as an admission by any Released Party that any obligation,
liability, contract, claim or cause of action exists which is within the scope of those released
within this Section 9.
(d) Each of the Issuers and Guarantors acknowledges that the release contained herein
constitutes a material inducement to the Majority Note Holders to enter into this Agreement, and
that the Majority Note Holders would not have done so but for this release and the Majority Note
Holders’ expectation that the same is valid and enforceable in any and all events.
10. Covenants.
(a) Each of the Obligors shall provide to Xxxxxx Xxxxxx reasonably full and timely access to
each of the Obligors’ books, records, and financial personnel upon reasonable advance notice during
regular business hours.
(b) The Obligors shall notify the Majority Note Holders within forty-eight (48) hours of any
of the Obligors (i) opening a new account with a financial institution that is not a Disclosed
Bank, or (ii) transferring any cash or cash equivalents from any Deposit Account, Securities
Account or any other bank account or similar account that any of the Obligors maintain with a
Disclosed Bank to a financial institution that is not a Disclosed Bank. Upon such notification,
the Obligors and Majority Note Holders hereby agree that Schedule “A” is amended to include the new
financial institution as a Disclosed Bank without any further written modification necessary, and
such new financial institution shall be deemed a Disclosed Bank effective as of the date of such
notification.
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11. Events of Default. Each of the following events shall be an event of default
hereunder and shall, in addition to all remedies available to the Majority Note Holders under the
Loan Documents and/or applicable law, give rise to the remedies set forth in Section 12 below.
Each event of default hereunder shall also be an Event of Default under the Loan Documents and
shall give rise to the rights and remedies thereunder (each, a “Forbearance Event of Default”).
(a) Any of the Issuers or Guarantors shall fail to perform any of their respective obligations
or any of the terms, provisions, covenants, conditions, or agreements contained in this Agreement.
(b) Any representation or warranty made in writing by or on behalf of any of the Issuers or
Guarantors pursuant hereto or otherwise in connection with the transactions contemplated hereby or
in any report, certificate, financial statement or other document furnished in connection with this
Agreement or any agreements, documents or instruments executed in connection herewith shall be
inaccurate or incomplete in any material respect.
(c) The occurrence of a default by any of the Issuers or Guarantors or an “Event of Default”
(or any similar such term provided therein) under that certain Credit Agreement dated December 20,
2004 by and among the Issuers, the Guarantors and Xxxxx Fargo Foothill, Inc. (as amended,
supplemented, modified, renewed, extended, or restructured from time to time and expressly
including any agreement extending the maturity date thereunder or providing for the forbearance by
Xxxxx Fargo Foothill, Inc. of any of its rights or remedies thereunder), and an exercise by Xxxxx
Fargo Foothill, Inc. of any of its rights or remedies against any of the Issuers or Guarantors
under the terms of such Credit Agreement.
(d) The occurrence of an Event of Default under Sections 6.1(4), (5) and (7) through (12) of
the Indenture, beyond any applicable notice and cure periods.
(e) The failure of the Issuers to (i) deliver the Term Sheet to the Professional Advisors by
no later than March 2, 2009 and (ii) to meet in person with the Professional Advisors during the
calendar week of March 2, 2009 to discuss the Term Sheet.
(f) The failure of the Issuers and/or Black Gaming to pay in full all incurred and unpaid fees
and expenses of the Professional Advisors pursuant to the Xxxxxx Xxxxxx Agreement and the CWT
Agreement, as such terms are hereinafter defined, within five (5) days of the Execution Date.
(g) The failure of the Obligors to notify the Majority Note Holders, as required in Section
10(b) above, within forty-eight (48) hours of any of the Obligors’ (i) opening a new account with a
financial institution that is not a Disclosed Bank, or (ii) transferring any cash or cash
equivalents to a Deposit Account, Securities Account or any other bank account or similar account
that any of the Obligors maintain with a Disclosed Bank to a financial institution that is not a
Disclosed Bank.
12. Remedies. Upon the occurrence of a Forbearance Event of Default under Section 11
above, at the sole option and immediately upon written declaration by the Majority Note Holders,
the forbearance hereunder shall terminate, and the Majority Note Holders may immediately, and
without expiration of any period of grace, exercise and enforce any or all of their rights and
remedies under the Loan Documents.
13. Non-Impairment. Except as expressly provided herein, nothing in this Agreement
shall alter or affect any provision, condition or covenant contained in the Loan Documents, or
affect or impair any rights, powers, or remedies thereunder, it being the mutual intent of the
parties hereto that the provisions of the Loan Documents shall continue in full force and effect.
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14. No Waiver. No failure to exercise, and no delay in exercising any right, power or
remedy hereunder or under any document delivered pursuant hereto shall impair any right, power or
remedy which the Majority Note Holders may have, nor shall any such delay be construed to be a
waiver of any of such rights, powers, or remedies, or an acquiescence in any breach or default
under this Agreement or any document delivered pursuant hereto nor shall any waiver of any breach
or default of any of the Issuers or Guarantors hereunder be deemed a waiver of any default of
breach subsequently occurring. The rights and remedies herein specified are cumulative and not
exclusive of any rights or remedies which the Majority Note Holders would otherwise have.
15. Entire Agreement; Amendment. The Loan Documents, including this Agreement,
contain or expressly incorporate by reference the entire agreement of the parties with respect to
the matters contemplated therein, and supersede all prior negotiations. This Agreement shall not
be modified except by written instrument executed by all parties hereto.
16. No Further Commitment. Issuers and Guarantors each expressly acknowledge that (a)
the Majority Note Holders have not made and are not making any commitment for, and there is no
understanding, explicit or implicit, relating to, or affecting, any forbearance or forgiveness of
future interest and/or principal, or any other matter, except as set forth in this Agreement, and
(b) Majority Note Holders have made no commitment with respect to, and there is no understanding,
explicit or implicit, relating or affecting the terms of any further forbearance, restructure,
workout or extension.
17. Notices. Notwithstanding anything to the contrary contained in the Loan
Documents, all communications, notices and demands of any kind which any party hereto may be
required or may desire to serve upon any other party shall be made in writing and shall be
effective upon the earliest of the following to occur: (a) when personally delivered to the
recipient; (b) one (1) business day after deposit with a nationally recognized overnight-guaranteed
delivery service; or (c) when sent by facsimile or electronic mail (provided confirmation of
transmission is received). The addresses for notices are as follows:
| If to the Majority | ||||
| Note Holders: | BlackRock Financial Management, Inc., High Yield Group, | |||
| as investment advisor/sub-advisor for certain accounts | ||||
| 00 Xxxx 00xx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attn: Xxxxx Xxxxxxxxxxx | ||||
| With a copy to Xxxxx Xxxxxxx, Esq. | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Drawbridge Special Opportunities Advisors LLC, | ||||
| as agent on behalf of certain funds and accounts | ||||
| 1345 Avenue of the Xxxxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000: | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attn.: Xxxx Xxxxxxxx | ||||
| Midland National Life Insurance Company | ||||
| 1888 FUND, LTD. | ||||
| c/o Guggenheim Partners | ||||
| 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attention: Operations Team |
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| Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx Fund, Ltd. | ||||
| 0 Xxxxxxxxx Xxxxx | ||||
| Xxxxxxxxx, Xxxxxxxxxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attn.: Xxxxxxxx Xxxxxxx | ||||
| E-mail: xxxxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx | ||||
| With a copy to: | Cadwalader, Xxxxxxxxxx & Xxxx LLP | |||
| Xxx Xxxxx Xxxxxxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attn.: Xxxxx X. Xxxxxxxxx, Esq. and Xxxxxxx X. Xxxxx, Esq. | ||||
| Facsimile No.: (000) 000-0000 | ||||
| If to the Issuers | ||||
| and Guarantors: | CasaBlanca Resorts | |||
| 000 Xxxx Xxxxxxxx Xxxxxxxxx | ||||
| Xxxxxxxx, Xxxxxx 00000 | ||||
| Attn: Chief Executive Officer | ||||
| Facsimile No.: (000) 000-0000 | ||||
| With a copy to: | Xxxxxx Silver | |||
| 0000 Xxxxxx Xxxxxx Xxxxxxx | ||||
| 0xx Xxxxx | ||||
| Xxx Xxxxx, Xxxxxx 00000 | ||||
| Attn: Xxxxxxx X. Xxxxxx | ||||
| Facsimile No.: (000) 000-0000 |
Any party may change its address by giving the other parties written notice of its new address as
herein provided.
18. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York, including, without limitation, Sections 5-1401 and 5-1402 of the New York
General Obligations Law and New York Civil Practice Laws and Rules 327(b); provided that with
respect to the enforcement and remedies relating to the security interest in any real property
Collateral, the governing law may be the laws of the jurisdictions where such Collateral is located
without regard to the conflict of law provisions thereof.
19. Interpretation. The captions of the sections of this Agreement are for
convenience and reference only, and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of this Agreement. Any
pronouns or references used herein shall be deemed to include the masculine, feminine or neuter
genders as appropriate. Any expression in the singular or the plural shall, if appropriate in the
context, include both the singular and the plural.
20. Severability. If any provision of this Agreement or any provision of the Loan
Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that portion shall be deemed severed therefrom, and the remaining parts shall remain
in full force as though the invalid, illegal or unenforceable portion had never been a part
thereof.
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21. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the parties, their heirs, executors, administrators, successors and assigns.
22. Fees and Costs. In consideration for the agreement of Majority Note Holders to
forbear as provided in Section 5 hereof, the Issuers hereby acknowledge that the expenses incurred
by the Majority Note Holders in connection with the preparation and negotiation of this Agreement
and any other documents, including without limitation the reasonable fees of and expenses incurred
by their attorneys and advisors, are expenses that are payable by the Issuers under the Loan
Documents, and the Issuers agree that they shall pay such expenses upon demand.
23. Professional Fees. Black Gaming hereby acknowledges its obligation to pay the
fees and expenses of Xxxxxx Xxxxxx, as set forth in that certain Letter Agreement dated as of
January 8, 2009 by and between Xxxxxx Xxxxxx and Black Gaming (the “Xxxxxx Xxxxxx Agreement”), and
of CWT, as set forth in that certain Letter Agreement dated as of October 29, 2008 by and between
CWT and Black Gaming (the “CWT Agreement”), and Black Gaming hereby agrees to continue to pay such
fees and expense in accordance with the terms and conditions of the Xxxxxx Xxxxxx Agreement and the
CWT Agreement during the Forbearance Period.
24. WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE ISSUERS, GUARANTORS AND MAJORITY NOTE
HOLDERS HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE
MAJORITY NOTE HOLDERS, ISSUERS, GUARANTORS, OR ANY ONE OR MORE OF THEM, ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE ISSUERS,
GUARANTORS AND MAJORITY NOTE HOLDERS IN CONNECTION WITH THE LOAN DOCUMENTS, THIS AGREEMENT, OR ANY
OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE MAJORITY NOTE HOLDERS TO ENTER INTO
THIS AGREEMENT. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE ABILITY OF ANY
OF THE MAJORITY NOTE HOLDERS TO PURSUE ITS RIGHTS AND REMEDIES CONTAINED IN THE LOAN DOCUMENTS,
THIS AGREEMENT, OR ANY OTHER DOCUMENT OR AGREEMENT RELATED HERETO.
25. No Third Party Beneficiaries. No person other than the parties hereto (and their
respective successors and permitted assigns) shall have any rights hereunder or be entitled to rely
on this Agreement, and all other third-party beneficiary rights are hereby expressly disclaimed.
26. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but all of which together
shall be considered one and the same agreement. Facsimile copies of the signature page hereof
shall be deemed originals and shall be binding for all purposes.
27. Effectiveness. This Agreement shall become effective immediately upon the
satisfaction of the following conditions (such date, the “Effective Date”):
(a) Each of the Issuers, the Guarantors and the Majority Note Holders shall have executed and
delivered a copy of this Agreement; and
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(b) The execution and delivery of the Amended and Restated Forbearance Agreement among the
Issuers, the Guarantors and Xxxxx Fargo Foothill, Inc. in respect of the Credit Agreement in form
and substance reasonably acceptable to the Majority Note Holders.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Execution Date.
| ISSUERS: | ||||
| VIRGIN RIVER CASINO CORPORATION, | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| RBG, LLC, | ||||
| a Nevada limited liability company | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| B & BB, INC., | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| GUARANTORS: | ||||
| CASABLANCA RESORTS, LLC, | ||||
| a Nevada limited liability company | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
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| OASIS INTERVAL OWNERSHIP, LLC, | ||||
| a Nevada limited liability company | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| OASIS INTERVAL MANAGEMENT, LLC, | ||||
| a Nevada limited liability company | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| OASIS RECREATIONAL PROPERTIES, INC., | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| BLACK GAMING, LLC, | ||||
| a Nevada limited liability company | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| R. BLACK, INC., | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Printed Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
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| MAJORITY NOTE HOLDERS: | ||||
| BLACKROCK FINANCIAL MANAGEMENT, INC., | ||||
| HIGH YIELD GROUP, as investment | ||||
| advisors/sub-advisors for certain accounts | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Printed Name: | Xxxxx X. Xxxxx | |||
| Its: | Managing Director | |||
| DRAWBRIDGE SPECIAL OPPORTUNITIES ADVISORS LLC, | ||||
| as agent on behalf of certain funds and accounts | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Printed Name: | Xxxx X. Xxxxxxxx | |||
| Its: | Chief Operating Officer | |||
| MIDLAND NATIONAL LIFE INSURANCE COMPANY | ||||
| By: Guggenheim Partners Advisory Company, its Agent | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Printed Name: | Xxxxxxx Xxxxxx | |||
| Its: | Senior Managing Director | |||
| 1888 FUND, LTD. | ||||
| By: Guggenheim Investment Management, LLC, | ||||
| as its Collateral Manager | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Printed Name: | Xxxxxxx Xxxxxx | |||
| Its: | Senior Managing Director | |||
| SILVER POINT CAPITAL OFFSHORE FUND, LTD. | ||||
| By: Silver Point Capital, L.P., | ||||
| Its Investment Manager | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Printed Name: | Xxxxxxxxx X. Xxxxx | |||
| Its: | Authorized Signatory | |||
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Schedule A
Disclosed Banks
| 1. | Colonial Bank |
||
| 2. | Bank of America |
||
| 3. | Bank of Nevada |
||
| 4. | Xxxxx Fargo |
