Filed by Bowne Pure Compliance







Exhibit 10.1


FIRST AMENDMENT FORBEARANCE,
CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT


This First
Amendment to Forbearance, Consent and Third Amendment to Credit Agreement (this
“Agreement”) is dated as of January 15, 2009, by and
among the lenders identified on the signature pages hereof (such lenders,
together with their respective successors and permitted assigns, are referred
to hereinafter each individually as a “Lender” and
collectively as the “Lenders”), WELLS FARGO FOOTHILL,
INC., a California corporation, as the arranger and administrative agent
for the Lenders (in such capacity, together with its successors and assigns in
such capacity, “Agent”), 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”),
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 collectively, jointly and severally, as the
“Borrowers”), BLACK GAMING, LLC, a Nevada limited
liability company (“Black Gaming”) and R. BLACK,
INC., a Nevada corporation (together with Black Gaming, collectively,
jointly and severally, the “Guarantors”) with reference to
the following:


WHEREAS,
Borrowers, Lenders, and Agent are parties to that certain Credit Agreement
entered into as of December 20, 2004, as amended by that Joinder Agreement and
Amendment dated as of December 31, 2006, that First Amendment to Credit
Agreement entered into as of October 26, 2007, the Second Amendment to
Credit Agreement entered into as of June 20, 2008 and the Forbearance, Consent
and Third Amendment to Credit Agreement (the “Forbearance
Agreement”) dated as of November 3, 2008 (as may be further
amended, restated, supplemented, or otherwise modified from time to time, the
“Credit Agreement”);


WHEREAS,
Borrowers have further requested that Agent and Lenders make certain amendments
to the Forbearance Agreement;


WHEREAS,
subject to the terms and conditions set forth herein, Lenders are willing to
make the amendments requested by Borrowers.


NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


1. Defined
Terms. All capitalized terms used herein (including, without limitation, in
the preamble and recitals hereof) without definition shall have the meanings
ascribed thereto in the Credit Agreement, or as applicable, the Forbearance
Agreement.


2. Amendments to Forbearance Agreement. 


2.1
Section 2.1 of the Forbearance Agreement, Forbearance, is hereby amended
and modified by deleting the date “January 15, 2009” in clause
(iii) of Section 2.1 of the Forbearance Agreement and replacing such
date with “February 2, 2009”.


 


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3. Acknowledgment of Borrowers and Guarantors. As a
material inducement to the execution by Agent and the undersigned Lenders of
this Agreement, each Borrower and Guarantor hereby acknowledge, confirm and
agree as follows:


(a) As of
January 14, 2009, the total aggregate outstanding principal amount of the
Obligations under the Credit Agreement with respect to the Advances is
$14,913,557.06, and all Obligations owing by Borrowers, together with interest
accrued and accruing thereon, and all fees, costs, expenses and other charges
now or hereafter payable by such Borrower to Agent and each Lender, are
unconditionally owing by Borrowers to Agent and each Lender, without offset,
defense, withholding, counterclaim or deduction of any kind, nature or
description whatsoever.


(b) Agent,
for the benefit of the Lender Group, has and shall continue to have valid,
enforceable and perfected first-priority liens upon and security interests in
the Collateral granted to Agent, for the benefit of the Lender Group, pursuant
to the Loan Documents or otherwise granted to or held by Agent, for the benefit
of the Lender Group.


(c) Upon the
occurrence of the Designated Events of Default, no member of the Lender Group
will have any obligation to make any Advances or other extensions of credit to
any Borrower.


4. Binding
Effect of Documents. Each Borrower and Guarantor hereby acknowledge,
confirm and agree that: (i) each of the Loan Documents to which it is a
party has been duly executed and delivered to Agent and Lenders thereto by such
Borrower or Guarantor, and each is in full force and effect as of the date
hereof, (ii) the agreements and obligations of such Borrower or Guarantor
contained in the Loan Documents and in this Agreement constitute the legal,
valid and binding obligations of such Borrower or Guarantor, enforceable
against such Borrower or Guarantor in accordance with their respective terms,
and such Borrower or Guarantor has no valid defense to the enforcement of the
obligations under the Credit Agreement, and (iii) Agent and each Lender
are and shall be entitled to the rights, remedies and benefits provided for in
the Loan Documents and under applicable law or at equity.


5. Amendment Fee. In connection with this Agreement
and in consideration for, among other things, the extension of the forbearance
provided under Forbearance Agreement as amended hereby, Borrowers hereby agree
to pay to Agent an amendment fee by wire transfer of immediately available
funds in an amount equal to $5,000 (the “Amendment Fee”),
which Amendment Fee shall be fully earned, due and payable on the date hereof.


6. Conditions Precedent to Effectiveness. This
Agreement shall become effective as of the date when, and only when, the
following conditions have been satisfied as determined in Agent’s sole
and absolute discretion:


(a) Agent
shall have received duly executed counterparts of this Agreement duly executed
by Borrowers, Guarantors and the Lenders;


(b) Borrowers
shall have paid all fees, costs and expenses incurred in connection with this
Agreement and any other Loan Documents (including, without limitation, legal
fees and expenses);


 


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(c) The
representations and warranties made or deemed made by Borrowers and Guarantors
under this Agreement shall be true and correct;


(d) The Agent
shall have received the Amendment Fee; and


(e) The Agent
shall have received such other documents as the Agent may request with respect
to any of the foregoing.


7. Representations and Warranties. Each Borrower
and Guarantor represents and warrants as follows:


(a) The
execution, delivery and performance of this Agreement are within such
Borrower’s or Guarantor’s, as applicable, powers, have been duly
authorized by all necessary action and do not (i) violate any provision of
federal, state, or local law or regulation applicable to such Borrower or
Guarantor, as applicable, the Governing Documents of such Borrower or
Guarantor, as applicable, or any order, judgment, or decree of any court or
other Governmental Authority binding on such Borrower or Guarantor, as
applicable, or (ii) conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any material
contractual obligation of such Borrower or Guarantor, as applicable.


(b) No
authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority, any regulatory body, any Borrower’s or
Guarantor’s interestholders or any Person under any material contractual
obligations of any Borrower or any Guarantor is required for the due execution,
delivery and performance by Borrowers and Guarantors of this Agreement.


(c) Each
representation or warranty of Borrowers and Guarantors set forth in the Credit
Agreement and the other Loan Documents, is hereby restated and reaffirmed as
true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof), on and
as of the date of this Agreement, and after giving effect to this Agreement, as
if such representation or warranty were made on and as of the date of, and
after giving effect to, this Agreement (except to the extent that such
representations and warranties relate solely to an earlier date).


(d) This
Agreement constitutes the legal, valid and binding obligation of Borrowers and
Guarantors, enforceable against Borrowers and Guarantors in accordance with its
terms.


(e) No
Default or Event of Default, other than the Designated Events of Default,
exists under the Credit Agreement.


8. Affirmation of Guaranty. By executing this
Agreement, each Guarantor hereby acknowledges, consents and agrees that all of
its obligations and liabilities under the provisions of the Guaranty remain in
full force and effect, and that the execution and delivery of this Agreement
and any and all documents executed in connection therewith shall not alter,
amend, reduce or modify its obligations and liability under the Guaranty or any
of the other Loan Documents to which it is a party.


 


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9. No Other
Amendments or Waivers. Except in connection with the amendments to the
Forbearance Agreement set forth above, the execution, delivery and
effectiveness of this Agreement shall not operate as an amendment of any right,
power or remedy of Agent or the Lenders under the Credit Agreement or any of
the other Loan Documents, nor constitute a waiver of any provision of the
Credit Agreement or any of the other Loan Documents. Except for the amendments
to the Forbearance Agreement as expressly set forth above, the text of the
Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect and Borrowers and Guarantors hereby ratify and confirm
their respective obligations thereunder. This Agreement shall not constitute a
modification of the Credit Agreement or any of the other Loan Documents or a
course of dealing with Agent or the Lenders at variance with the Credit
Agreement or the other Loan Documents such as to require further notice by
Agent or the Lenders to require strict compliance with the terms of the Credit
Agreement and the other Loan Documents in the future, except as expressly set
forth herein. Borrowers and Guarantors acknowledge and expressly agree that
Agent and the Lenders reserve the right to, and do in fact, require strict
compliance with all terms and provisions of the Credit Agreement and the other
Loan Documents, as amended herein. Borrowers and Guarantors have no knowledge
of any challenge to Agent’s or any Lender’s claims arising under
the Loan Documents, or to the effectiveness of the Loan Documents. The
forbearance provided under the Forbearance Agreement, as amended hereby, is
limited to the precise terms thereof, and neither Agent nor any Lender is
obligated to consider or consent to any additional request by Borrowers for any
other forbearance with respect to the Credit Agreement.


10. No
Disregard of Loan Documents. Each Borrower and Guarantor acknowledge that
the parties hereto have not entered into a mutual disregard of the terms and
provisions of the Credit Agreement or the other Loan Documents, or engaged in
any course of dealing in contravention of or inconsistent with any of the
material terms and provisions of the Credit Agreement or the other Loan
Documents, within the meaning of any applicable law of the State of New York,
or otherwise.


11. Advice
of Counsel. Each Borrower and Guarantor have had the advice of independent
counsel of their own choosing in negotiations for and the preparation of this
Agreement, has read this Agreement in full and final form, and has had this
Agreement fully explained to their satisfaction.


12. Further
Assurances. Each Borrower and Guarantor agree, upon the reasonable request
of the Agent, at Borrowers’ expense, to promptly execute and deliver to
Agent, or caused to be executed and delivered to Agent, any document that is
necessary to correct any inadvertent omissions (as agreed to by Borrowers and
Agent) in the Credit Agreement and other Loan Documents or to carry out the
intent of this Agreement (as agreed by Borrowers and Agent).


13. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.


14. Integration. This Agreement, together with the
other Loan Documents, incorporates all negotiations of the parties hereto with
respect to the subject matter hereof and is the final expression and agreement
of the parties hereto with respect to the subject matter hereof.


15. Loan
Document. This Agreement shall be deemed to be a Loan Document for all
purposes.


 


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16. Release
by Borrowers; Covenant not to Sue.


(a) Effective
on the date hereof, each Borrower and Guarantor hereby waive, release, remise
and forever discharge Agent and each Lender, each of their respective
Affiliates, and each of the officers, directors, employees and agents of Agent,
each Lender and their respective Affiliates (collectively, the
“Releasees”), from any and all claims, suits,
investigations, proceedings, demands, obligations, liabilities, causes of
action, damages, losses, costs and expenses, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute or
common law of any kind or character, known or unknown, past or present,
liquidated or unliquidated, suspected or unsuspected, which any Borrower and
Guarantor ever had from the beginning of the world, or now has against any such
Releasee which relates, directly or indirectly to the Credit Agreement, any
other Loan Document, or to any acts or omissions of any such Releasee under, in
connection with, pursuant to or otherwise in respect of this Agreement, the
Credit Agreement or any of the other Loan Documents, except for the duties and
obligations set forth in this Agreement, the Credit Agreement, or any of the
other Loan Documents. As to each and every claim released hereunder, each
Borrower and Guarantor hereby represents that it has received the advice of
legal counsel with regard to the releases contained herein, and having been so
advised, specifically waives the benefit of the provisions of Section 1542
of the Civil Code of California which provides as follows:


“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”


As to each and
every claim released hereunder, each Borrower and Guarantor also waives the
benefit of each other similar provision of applicable federal or state law
(including without limitation the laws of the State of New York), if any,
pertaining to general releases after having been advised by its legal counsel
with respect thereto.


(b) Each
Borrower and Guarantor, on behalf of itself and its respective successors,
assigns, and other legal representatives, hereby absolutely, unconditionally
and irrevocably, covenant and agree with and in favor of each Releasee above
that it will not sue (at law, in equity, in any regulatory proceeding or
otherwise) any Releasee on the basis of any claim released, remised and
discharged by such Person pursuant to the above release. Each Borrower and
Guarantor further agree that it shall not dispute the validity or
enforceability of the Credit Agreement or any of the other Loan Documents or
any of its obligations thereunder, or the validity, priority, enforceability or
the extent of the Agent’s Lien on any item of Collateral under the Credit
Agreement or the other Loan Documents. If any Borrower or Guarantor, or any of
their respective successors, assigns or other legal representatives violates
the foregoing covenant, such Person, for itself and its respective successors,
assigns and legal representatives, agrees to pay, in addition to such other
damages as any Releasee may sustain as a result of such violation, all
attorneys’ fees and costs incurred by such Releasee as a result of such
violation.


17. Severability. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, such provision shall be
severable from the remainder of this Agreement and the


 


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validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.


18. Modification. This Agreement may not be
amended, waived or modified in any manner without the written consent of the
party against whom the amendment, waiver or modification is sought to be
enforced.


19. Reference to Loan Documents. Upon and after the
effectiveness of this Agreement, each reference in the Forbearance Agreement to
“this Agreement”, “hereunder”, “hereof” or
words of like import referring to the Forbearance Agreement, and each reference
in the other Loan Documents to “the Forbearance Agreement”,
“thereof” or words of like import referring to the Forbearance
Agreement, shall mean and be a reference to the Forbearance Agreement as
amended and supplemented hereby. Unless the context of this Agreement 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.”


20. Counterparts. This Agreement may be executed by
one or more of the parties hereto on any number of separate counterparts, each
of which shall be deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission or other electronic
method of transmission shall be as effective as delivery of a manually executed
counterpart thereof.


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IN WITNESS WHEREOF,
the parties hereto have caused their respective duly authorized officers or
representatives to execute and deliver this Agreement as of the day and year
first written above.


	 	 	 
	BORROWERS:	B & B B, INC., 

a Nevada corporation
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	 	CASABLANCA RESORTS, LLC,

a Nevada limited liability company
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	 	OASIS INTERVAL MANAGEMENT, LLC,

a Nevada limited liability company
	 
	 	By:  	/s/ Sean P. McKay 
	 	Name: Sean McKay

Title: CAO
	 
	 	OASIS INTERVAL OWNERSHIP, LLC,

a Nevada limited liability company
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO





First Amendment to Forbearance, Consent and
Third Amendment to Credit Agreement 


 


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	 	OASIS RECREATIONAL PROPERTIES, INC.,

a Nevada corporation
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	 	RBG, LLC,

a Nevada limited liability company
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	 	VIRGIN RIVER CASINO CORPORATION,

a Nevada corporation 
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	GUARANTORS:

	BLACK GAMING, LLC,

a Nevada limited liability company
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO
	 
	 	R. BLACK, INC.,

a Nevada corporation
	 
	 	By:  	/s/ Sean P. McKay
	 	Name: Sean McKay

Title: CAO





 




First Amendment to Forbearance, Consent and
Third Amendment to Credit Agreement 


 


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	AGENT AND LENDERS:

	 WELLS FARGO FOOTHILL, INC.,

a California corporation, as Agent and as a Lender
	 
	 	By: 	/s/ Steve Scott
	 	Name: Steve Scott

Title: VP







First Amendment to Forbearance, Consent and Third Amendment to Credit Agreement


 


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