EXHIBIT
10.1


 


“RCT”
means the material omitted has been filed separately with the Securities and
Exchange Commission with an application requesting confidential treatment.


 


TWENTY-SECOND
AMENDMENT TO


LEASE
AND SUBLEASE AGREEMENT


 


THIS
TWENTY-SECOND AMENDMENT TO LEASE AND SUBLEASE AGREEMENT (“Twenty-Second Amendment”) is made and
entered effective the 30th  day of June,
2009, by and between SMITH’S FOOD &
DRUG CENTERS, INC., an Ohio corporation qualified to do business in
Nevada (hereinafter called “Smith’s”)
and HERBST GAMING, INC. a Nevada
corporation, and MARKET GAMING, INC.,
a Nevada corporation (hereinafter collectively called “Herbst”), successor to ANCHOR COIN, a licensed slot route operator
in the State of Nevada (hereinafter called “Anchor”).


 


WITNESSETH:


 


WHEREAS, Smith’s and Anchor entered into that
certain Lease and Sublease Agreement dated July 28, 1993, whereby Smith’s
leases or subleases space to Anchor within those certain properties listed on Exhibit “A”
to the Agreement and identified as either “Leased Properties” or “Owned
Properties,” for the operation of certain gaming devises, which Agreement was
amended by that certain First Amendment to Lease and Sublease Agreement dated June 30,
1994; that certain Second Amendment to Lease and Sublease Agreement dated January 25,
1995; that certain Third Amendment to Lease and Sublease Agreement dated March 28,
1995; that certain Fourth Amendment to Lease and Sublease Agreement dated February 27,
1996; that certain Fifth Amendment to Lease and Sublease Agreement dated April 26,
1996; that certain Sixth Amendment to Lease and Sublease Agreement dated November 13,
1996; that certain Seventh Amendment to Lease and Sublease Agreement dated February 21,
1997; that certain Eighth Amendment to Lease and Sublease Agreement dated December 19,
1997; that certain Ninth Amendment to Lease and Sublease Agreement dated August 4,
1998; that certain Tenth Amendment to Lease and Sublease Agreement dated September 28,
1998; that certain Eleventh Amendment to Lease and Sublease Agreement dated May 3,
1999; that certain Twelfth Amendment to Lease and Sublease Agreement dated March 29,
2000: that certain Thirteenth Amendment to Lease and Sublease Agreement dated January 12,
2001; that certain First Affiliate Amendment to Lease and Sublease Agreement
dated August 23, 2002; that certain Fourteenth Amendment to Lease and
Sublease Agreement dated October 9, 2002; that certain Fifteenth Amendment
to Lease and Sublease Agreement dated August 29, 2003; that certain
Sixteenth Amendment to Lease and Sublease Agreement dated December 2,
2003; that certain Seventeenth Amendment to Lease and Sublease Agreement dated March 12,
2004; that certain Eighteenth Amendment to Lease and Sublease Agreement dated October 5,
2004; that certain Nineteenth Amendment to Lease and Sublease Agreement dated April 6,
2005; that certain Twentieth Amendment to Lease and Sublease Agreement dated October 17,
2005; and that certain Twenty-First Amendment to Lease and Sublease Agreement
dated July 25, 2006 (collectively, the “Agreement”); and


 


WHEREAS, Anchor assigned all of its rights,
title, and interest in the Agreement to Herbst by the certain Asset Purchase
Agreement dated November 11, 2002; and


 


WHEREAS, Smith’s and Herbst now desire to
further amend the Agreement as more fully set forth hereinafter and for Herbst
to assume the Agreement as provided for in 11 U.S.C 365 (the “Bankruptcy Code”);


 


NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained herein, Smith’s
and Herbst hereby agree as follows:


 


1.             Term.  Notwithstanding anything contained in the
Agreement, the Term of the Agreement is hereby extended to and including RCT.


 


2.             Rent.  Herbst agrees to pay Smith’s as monthly
rental for the use and occupancy of each of the Supermarkets and the exclusive
right to operate Gaming Devices in each of the Supermarkets listed, for each of
the Lease Months (“Lease Months”) the rental specified opposite such
Supermarket on Exhibit “A” attached hereto and incorporated herein by
reference (the “Rent”).


 


Commencing January 1,
2011, and each calendar year thereafter, the Rent paid by Herbst to Smith’s
shall be increased by RCT for all stores listed on Exhibit A RCT.  In no event shall Rent be decreased for any
store.  Thus, for example, if RCT for all
stores in 2010 is RCT, then, beginning January 1, 2011, the Rent for each
store shall be increased by RCT. 
Conversely, if RCT in 2010 is RCT, then Rent will not be adjusted.  The term RCT shall mean RCT.


 


In order to determine
RCT, Herbst will provide to an independent accountant approved by Smith’s a
detailed listing of active Supermarkets under the Agreement for each yearly
period, commencing with the periods from January 2009-December 2009
and January 2010-December 2010, and updating the listing each year
thereafter. Any new Supermarkets opened during a year will not be included in
this listing for purposes of determining RCT for that year, but they shall be
included for each full calendar year they are in operation.  Herbst shall also provide to the independent
accountant a detailed listing of RCT for all Supermarkets for each month during
the relevant yearly period, which shows RCT for all Supermarkets for each
yearly period and RCT for all Supermarkets RCT.


 

















 


The independent accountant shall prove the arithmetic
accuracy of RCT for all Supermarkets for each calendar year and RCT for all
Supermarkets, and shall confirm in writing to Herbst and Smith’s RCT for each
calendar year.  Smith’s shall be entitled
to and shall be provided RCT, but not RCT by the independent accountants.


 


Any increase in Rent
pursuant to this paragraph 2 shall be calculated within ninety (90) days
following the end of each calendar year and shall be paid retroactively as of January 1
of each year.   The Rent for any New
Supermarket shall be subject to increase after it has been in operation for a
full calendar year, even though RCT will not be included in the RCT of that
year for purposes of comparing against the prior year.


 


3.             RCT.  In addition to the Rent under the Agreement,
Herbst shall pay to Smith’s the sum of RCT upon execution of this Twenty-Second
Amendment (“RCT”).


 


4.             Additional
Consideration.  As
additional consideration, Herbst shall, upon execution of this Twenty-Second
Amendment, release all of the remaining funds currently held as a Security
Deposit by Smith’s, pursuant to Section 5 of the Agreement, which amount
totals RCT.


 


5.             Change Persons and
Jackpot Payouts. 
Notwithstanding anything contained in Section 11 of the Agreement,
should the Nevada Gaming Control Board allow Herbst to reduce hours of change
persons or allow for their use to be discontinued altogether, then Herbst shall
be allowed to do so.


 


6.             New Supermarkets.  In addition to the Rent called for in the
Agreement, as it may be adjusted pursuant to paragraph 2 of this Twenty-Second
Amendment, Herbst shall pay to Smith’s, for each new supermarket, a pro rata
amount of RCT, up to a maximum of RCT per new Supermarket (the “New Supermarket
RCT”).  The actual amount of the New
Supermarket RCT payable for any new Supermarket shall be based on the total
number of months remaining on the Term at the time of commencement of gaming
operations at that specific new Supermarket divided by sixty-six (66),
multiplied by RCT.  Thus, for example,
for a new Supermarket commencing gaming operations in January 2011, Herbst
would pay to Smith’s the amount of RCT. 
This New Supermarket RCT shall be payable upon commencement of gaming
operations at each specific new Supermarket.


 


7.             Demised Premises
Upgrade.  On or before January 1,
2011, Herbst shall, at its own expense, upgrade all of the Demised Premises so
that they are current, clean and attractive.


 


8.             Bankruptcy Court
Approval.  Smith’s
understands that Herbst is a debtor-in-possession under Chapter 11 proceedings
before the United States Bankruptcy Court for the District of Nevada (“Bankruptcy
Court”), being Case No.                              . 
As such, Smith’s acknowledges and understands that Herbst intends to seek
the approval of this Twenty-Second Amendment on the part of Herbst by the
Bankruptcy Court and the assumption of the Agreement pursuant to Section 365
of the Bankruptcy Code.  Herbst agrees to file a motion to approve this
Twenty-Second Amendment with the Bankruptcy Court pursuant to Section 363
of the Bankruptcy Court and to assume the Agreement pursuant to Section 365
of the Bankruptcy Court within fifteen (15) business days of the full execution
of this Twenty-Second Amendment, and except as may be extended in writing by
Smith’s and Herbst, to obtain the entry of an order of the Bankruptcy
Court  within sixty (60) days thereafter approving the enforceability and
effectiveness of this Twenty-Second Amendment as it relates to Herbst. 
The Effective Date of this Twenty-Second Amendment shall be the first business
day following the date the Bankruptcy Court order becomes final.  Smith’s agrees to reasonably cooperate
with and assist Herbst in this regard. 
Should the Bankruptcy Court fail to approve this Twenty-Second Amendment
for any reason or if the Bankruptcy Court order is not obtained within the
60-day period referred to above (as such period may be extended by the
parties), then Smith’s shall return RCT previously paid by Herbst to Smith’s
under paragraph 3 herein and shall release the additional consideration
previously released by Herbst to Smith’s under paragraph 4, which shall then be
retained by Smith’s as a Security Deposit. 
Additionally, this Twenty-Second Amendment shall be null and void and
the parties shall continue to be bound by the July 28, 1993 Agreement, as
amended.


 


9.             Notice.   All notices or demands required or permitted to be given or served
pursuant to the Agreement shall be deemed to have been given or served only if
in writing forwarded by registered or certified mail~ postage prepaid, and
addressed as follows:


 


	
  To Smith’s

  	
   

  	
  Smith’s Food &
  Drug Center, Inc

  1550 South Redwood Road

  Salt Lake City, Utah 89104

  
	
   

  	
   

  	
   

  
	
  To Herbst

  	
   

  	
  Market
  Gaming, Inc.

  3440 W. Russell Road

  Las Vegas, NV 89118

  Attn: General Counsel

  



 


Either party hereto may
change such address by giving written notice to the other party.


 

















 


10.           Miscellaneous.  This Twenty-Second Amendment shall be binding
on the parties hereto and their respective successors and assigns.  The individuals executing this Twenty-Second
Amendment represent and warrant that they are duly empowered so to do and have
authority to bind their respective party. 
The Agreement remains in full force and effect and remains unmodified
except to the extent specifically amended herein.  Unless otherwise specified herein, the
capitalized terms of this Twenty-Second Amendment shall have the same meaning
as set forth in the Agreement.


 


IN
WITNESS WHEREOF,
the parties have executed this Twenty-Second Amendment on the date and year
first above written.


 


	
   

  	
  SMITH’S
  FOOD & DRUG CENTERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/
  KYLE MCKAY

  
	
   

  	
  Its:

  	
      VICE
  PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERBST
  GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/
  TROY D. HERBST

  
	
   

  	
  Its:

  	
      CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKET
  GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/
  TROY D. HERBST

  
	
   

  	
  Its:

  	
      SECRETARY/STREASURER

  



 

















 


EXHIBIT A


 


	
  Location - Address

  	
   

  	
  CITY

  	
   

  	
  ZIP

  	
   

  	
  Monthly

  Rental $

  
	
  0 - Smiths Advertising
  allowance, Advertising Allowance,

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  311 – Smith’s
  Food & Drug #311, 8050 S Rainbow, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89139

  	
   

  	
  RCT

  
	
  344 – Smith’s
  Food & Drug #344, 175 Lemmon Drive, Reno

  	
   

  	
  Reno

  	
   

  	
  89506

  	
   

  	
  RCT

  
	
  356 – Smith’s
  Food & Drug #356, 599 East William Street, Carson City

  	
   

  	
  Carson City

  	
   

  	
  89702

  	
   

  	
  RCT

  
	
  357 – Smith’s
  Food & Drug #357, 1255 Baring Boulevard, Sparks

  	
   

  	
  Sparks

  	
   

  	
  89431

  	
   

  	
  RCT

  
	
  378 – Smith’s
  Food & Drug #378, 750 South Meadows Parkway, Reno

  	
   

  	
  Reno

  	
   

  	
  89521

  	
   

  	
  RCT

  
	
  388 – Smith’s
  Food & Drug #388, 1740 Mountain City Highway, Elko

  	
   

  	
  Elko

  	
   

  	
  89801

  	
   

  	
  RCT

  
	
  389 – Smith’s
  Food & Drug #389, 1341 Highway 395, Gardnerville

  	
   

  	
  Gardnerville

  	
   

  	
  89410

  	
   

  	
  RCT

  
	
  390 – Smith’s
  Food & Drug #390, 1855 West Wendover Boulevard, Wendover

  	
   

  	
  Wendover

  	
   

  	
  89883

  	
   

  	
  RCT

  
	
  392 – Smith’s
  Food & Drug #392, 2200 Highway 50 East, Dayton

  	
   

  	
  Dayton

  	
   

  	
  89403

  	
   

  	
  RCT

  
	
  332 – Smith’s
  Food & Drug #332, 7130 North Durango Drive, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89149

  	
   

  	
  RCT

  
	
  334 – Smith’s
  Food & Drug #334, 2255 E. Centennial Parkway, North Las Vegas

  	
   

  	
  North Las Vegas

  	
   

  	
  89081

  	
   

  	
  RCT

  
	
  338 – Smith’s
  Food & Drug #338, 6855 Aliante Parkway, North Las Vegas

  	
   

  	
  North Las Vegas

  	
   

  	
  89084

  	
   

  	
  RCT

  
	
  341 – Smith’s
  Food & Drug #341, 601 South Highway 160, Pahrump

  	
   

  	
  Pahrump

  	
   

  	
  89041

  	
   

  	
  RCT

  
	
  342 – Smith’s
  Food & Drug #342, 350 North Sandhill Boulevard, Mesquite

  	
   

  	
  Mesquite

  	
   

  	
  89024

  	
   

  	
  RCT

  
	
  345 – Smith’s Food & Drug #345, 5564 Camino El Norte, North
  Las Vegas

  	
   

  	
  North Las Vegas

  	
   

  	
  89031

  	
   

  	
  RCT

  
	
  346 – Smith’s
  Food & Drug #346, 10616 South Eastern Avenue, Henderson

  	
   

  	
  Henderson

  	
   

  	
  89012

  	
   

  	
  RCT

  
	
  347 – Smith’s
  Food & Drug #347, 9851 West Charleston, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89117

  	
   

  	
  RCT

  
	
  348 – Smith’s
  Food & Drug #348, 1000 North Green Valley Parkway, Henderson

  	
   

  	
  Henderson

  	
   

  	
  89014

  	
   

  	
  RCT

  
	
  349 – Smith’s
  Food & Drug #349 , 10100 West Tropicana Ave., Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89147

  	
   

  	
  RCT

  
	
  350 – Smith’s
  Food & Drug #350, 4600 East Sunset Road, Henderson

  	
   

  	
  Henderson

  	
   

  	
  89014

  	
   

  	
  RCT

  
	
  351 – Smith’s
  Food & Drug #351, 6130 West Tropicana Avenue, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89103

  	
   

  	
  RCT

  
	
  354 – Smith’s
  Food & Drug #354, 3850 East Flamingo Road, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89121

  	
   

  	
  RCT

  
	
  355 – Smith’s
  Food & Drug #355, 450 North Nellis, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89110

  	
   

  	
  RCT

  
	
  358 – Smith’s
  Food & Drug #358, 2540 South Maryland Parkway, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89109

  	
   

  	
  RCT

  
	
  361 – Smith’s Store
  #361, 4700 West Ann Road, North Las Vegas

  	
   

  	
  North Las Vegas

  	
   

  	
  89031

  	
   

  	
  RCT

  
	
  363 – Smith’s Store
  #363 , 4015 South Buffalo Drive, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89147

  	
   

  	
  RCT

  
	
  364 - Smith’s
  Food & Drug #364, 10600 Southern Highlands Parkway, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89141

  	
   

  	
  RCT

  
	
  365 – Smith’s Store
  #365, 6150 West Flamingo Road, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89103

  	
   

  	
  RCT

  
	
  366 – Smith’s Store
  #366, 55 South Valley Verde Drive, Henderson

  	
   

  	
  Henderson

  	
   

  	
  89012

  	
   

  	
  RCT

  
	
  370 – Smith’s Store
  #370, 3160 North Rainbow Blvd., Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89107

  	
   

  	
  RCT

  
	
  371 – Smith’s
  Food & Drug #371, 8555 West Sahara Avenue, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89117

  	
   

  	
  RCT

  
	
  372 – Smith’s Store
  #372, 1421 North Jones Boulevard, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89108

  	
   

  	
  RCT

  
	
  376 – Smith’s
  Food & Drug #376, 2385 East Windmill Lane, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89123

  	
   

  	
  RCT

  
	
  377 – Smith’s
  Food & Drug #377, 850 South Rancho Drive, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89106

  	
   

  	
  RCT

  
	
  381 – Smith’s
  Food & Drug #381, 830 South Boulder Highway, Henderson

  	
   

  	
  Henderson

  	
   

  	
  89015

  	
   

  	
  RCT

  
	
  383 – Smith’s
  Food & Drug #383, 4440 North Rancho Drive, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89130

  	
   

  	
  RCT

  
	
  385 – Smith’s
  Food & Drug #385 , 2211 North Rampart Blvd., Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89128

  	
   

  	
  RCT

  
	
  394 – Smith’s
  Food & Drug #394, 9750 South Maryland Parkway, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89123

  	
   

  	
  RCT

  
	
  396 – Smith’s Food &
  Drug #396, 9350 West Flamingo Road, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89147

  	
   

  	
  RCT

  
	
  399 – Smith’s
  Food & Drug #399, 4840 West Desert Inn Road, Las Vegas

  	
   

  	
  Las Vegas

  	
   

  	
  89102

  	
   

  	
  RCT