Exhibit 10.1


 


AMENDMENT NO. 5 AND SECOND FORBEARANCE


AND STANDSTILL AGREEMENT


 


THIS AMENDMENT NO. 5 AND SECOND FORBEARANCE
AND STANDSTILL AGREEMENT (this “Agreement”) is made and entered into as
of the [  ] day of November, 2008 by and among each lender executing
a counterpart hereof, WILMINGTON TRUST COMPANY, as administrative agent (the “Administrative
Agent”), HERBST GAMING, INC. (the “Borrower”) and the Subsidiaries
of the Borrower executing a counterpart hereof (the “Grantors” and,
together with the Borrower, the “Loan Parties”).


 


Statement of Purpose


 


WHEREAS, reference is made
to the Second Amended and Restated Credit Agreement, dated as of January 3,
2007, among the Borrower, the lenders party thereto (the “Lenders”),
certain other parties and the Administrative Agent (as amended by Amendment No. 1
to Second Amended and Restated Credit Agreement, dated as of August 14,
2007, Amendment No. 2 to Second Amended and Restated Credit Agreement,
dated as of December 14, 2007, Omnibus Amendment No. 3 and Appointment
and Acceptance, dated as of April 24, 2008, and Amendment No. 4 and
Forbearance and Standstill Agreement, dated as of May 15, 2008 (as amended
by Amendment to Amendment No. 4 and Forbearance and Standstill Agreement
dated as of September 30, 2008), and as further amended, supplemented and
otherwise modified from time to time, the “Credit Agreement”;
capitalized terms used but not defined herein (including in Schedule A hereto)
being used herein as therein defined);


 


WHEREAS, each Grantor has guaranteed the
Obligations of the Borrower under the Credit Agreement;


 


WHEREAS, the Borrower has requested that the
Administrative Agent and the Lenders amend the Credit Agreement in certain
respects and forbear from exercising certain rights and remedies under the
Credit Agreement and the other Loan Documents provisionally through the
Forbearance Maturity Date (as defined below) solely in respect of the events
set forth in numbers 1 through and including 9 on Schedule A hereto (the “Current
Defaults” and, together with the events described in number 10 on Schedule
A hereto, the “Specified Defaults”); and


 


WHEREAS, the Administrative Agent and the
Lenders are willing to amend the Credit Agreement in certain respects and
forbear from exercising certain rights and remedies under the Credit Agreement
and the other Loan Documents provisionally only through the Forbearance
Maturity Date regarding the Specified Defaults, subject to the express terms
and provisions of this Agreement.


 


Agreement


 


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


 


1.             Acknowledgments by Loan Parties. To induce the Administrative Agent and the
Lenders to execute this Agreement, each Loan Party hereby acknowledges,
stipulates, represents, warrants and agrees as follows:


 


(a)           Each of the Current Defaults (including without limitation the Event of
Default under Section 8.01(a) of the Credit Agreement solely as a
result of the failure of the Borrower to pay the outstanding principal amount
of the Loans on November 6, 2008 as required pursuant to the Notice of
Acceleration delivered to the Borrower on such date) constitutes an Event of Default that has occurred,
remains uncured, has not been waived and is continuing as of the date 


 

















 


hereof and cannot be cured. Except for the Current Defaults, no other
Defaults or Events of Default have occurred and are continuing as of the date
hereof. Except as expressly set forth in this Agreement, the agreements of the
Administrative Agent and the Lenders hereunder to forbear provisionally in the
exercise of their respective rights and remedies under the Credit Agreement and
the other Loan Documents in respect of the Specified Defaults during the
Forbearance Period (as defined below) does not in any manner whatsoever limit
any right of any of the Administrative Agent and the Lenders to insist upon
strict compliance by the Loan Parties with this Agreement or any Loan Document
during the Forbearance Period.


 


(b)           To
the knowledge of the Loan Parties, immediately prior to executing this
Agreement nothing has occurred that constitutes or otherwise can be construed
or interpreted as a waiver of, or otherwise to limit in any respect, any rights
or remedies the Lenders, the Administrative Agent or any of them have or may
have arising as the result of any Event of Default (including any Specified
Default) that has occurred or that may occur under the Credit Agreement, the
other Loan Documents or applicable law. The Administrative Agent’s and the
Lenders’ actions in entering into this Agreement are without prejudice to the
rights of any of the Administrative Agent and the Lenders 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.


 


(c)           The
Revolving Loans outstanding as of the date hereof are in an amount equal to
$98,859,000. The Swing Line Loans outstanding as of the date hereof are in an
amount equal to $0. The Term Loans outstanding as of the date hereof are in an
amount equal to $747,962,500. The L/C Obligations of the Borrower outstanding
as of the date hereof are in an amount equal to $1,141,000. The foregoing
amounts do not include interest, fees and expenses and other amounts that are
chargeable or otherwise reimbursable under the Loan Documents.


 


(d)           All
of the assets pledged, assigned, conveyed, mortgaged, hypothecated or
transferred to the Administrative Agent for the benefit of the Lenders pursuant
to the Collateral Documents (including without limitation the Collateral
(including without limitation all proceeds thereof)) are (and shall continue to
be) subject to valid and enforceable liens and security interests of the
Administrative Agent for the benefit of the Lenders and the other Secured
Parties (as defined in the Security Agreement (as defined in the Credit
Agreement)), as collateral security for all of the Obligations, subject to no
Liens other than Liens permitted by Section 7.01 of the Credit Agreement. Each
of the Loan Parties hereby reaffirms and ratifies its prior conveyance to the
Administrative Agent for the benefit of the Lenders and the other Secured
Parties of a continuing security interest in and lien on the Collateral.


 


(e)           The
obligations of the Loan Parties under this Agreement of any nature whatsoever,
whether now existing or hereafter arising, are hereby deemed to be “Obligations”
for all purposes of the Credit Agreement and the other Loan Documents.


 


(f)            The
Obligations of the Loan Parties under this Agreement, the Credit Agreement and
the other Loan Documents constitute “Senior Debt” (as such term is defined in
the Credit Agreement).


 


(g)           Except
as expressly modified by this Agreement or as required by Gaming Laws in
Nevada, Missouri and Iowa, all terms and provisions of the Credit Agreement and
the other Loan Documents are valid and enforceable and remain in full force and
effect according to their respective terms. Each Grantor, as debtor, grantor,
pledgor, guarantor, assignor or in other similar capacity in which such party
grants liens or security interests in its properties or otherwise acts as an
accommodation party or guarantor, as the case may be, under the Loan Documents,
hereto hereby (i) agrees that the Credit Agreement as amended hereby is
the Credit Agreement under and for all purposes of the Guaranties and the
Collateral Documents and (ii) confirms that 


 


2

















 


the obligations of the Loan Parties under the Loan Documents as
modified hereby are entitled to the benefits of the guarantees set forth in the
Guaranties and constitute “Guaranteed Obligations” (as defined in each of the
Guaranties).


 


(h)           The
Lenders’ entry into, and covenants to perform in accordance with, this
Agreement and the Lenders’ consummation of the transactions contemplated hereby
constitute “new value” and “reasonably equivalent value”, as those terms are
used in Section 547 and 548 of Title 11 of the United States
Code (the “Bankruptcy Code”), received by the Loan Parties as of the
closing of this Agreement in contemporaneous exchange for the Loan Parties’
entry into, and covenants to perform in accordance with, this Agreement and the
documents executed in connection with this Agreement, and the Loan Parties’
consummation of the transactions contemplated hereby and thereby.


 


(i)            The
bank accounts listed in the April 15, 2008 schedule previously disclosed
by the Borrower to the Administrative Agent and any new accounts established
since May 15, 2008 in compliance with the immediately following sentence
(the “Existing Bank Accounts”) are the only bank accounts held or owned
by the Loan Parties as of the date hereof. Each Loan Party covenants (i) to not establish any new bank account
other than those set forth on said schedule, unless such bank account is established and located in the United States
and either pursuant to applicable law or regulations or in the ordinary course
of business (such new bank accounts, together with the Existing Bank Accounts,
being herein called the “Permitted Bank Accounts”), provided that
the Borrower shall give written notice to the Administrative Agent of any
account so established within five Business Days of the occurrence thereof, and
(ii) to not use amounts held in the Permitted Bank Accounts for any
purpose other than (a) ordinary course funding of the operations of the
Borrower and the other Loan Parties, including without limitation capital
expenditures made in the ordinary course of business, in each case only as
permitted by the Loan Documents, (b) payments of interest, fees and
expenses under the Credit Agreement and (c) payment of fees and expenses
of professionals in connection with any restructuring or reorganization efforts
of the Borrower and the other Loan Parties.


 


2.             Provisional Forbearance and Limited Deferral. Subject to the satisfaction of the
conditions precedent specified in Section 5 below, but effective as of the
date hereof, the Administrative Agent and the Lenders agree, except as set
forth in this Agreement, to forbear provisionally in the exercise of their
respective rights and remedies under the Credit Agreement and the other Loan
Documents in respect of the Specified Defaults until the date (the “Forbearance
Maturity Date”; the period from the date the conditions precedent specified
in Section 5 below are satisfied until the Forbearance Maturity Date being
herein called the “Forbearance Period”) which is the earliest to occur
of:


 


(a)           December 3,
2008 or, if the Administrative Agent shall have received counterparts of a
Restructuring Agreement (the “Restructuring Agreement”) summarizing the
terms of a proposed restructuring of the Obligations and evidencing the parties’
intent to pursue and support the implementation of such restructuring, executed
and delivered by the Borrower, each other Loan Party, the Lenders comprising
Requisite Lenders and Edward J. Herbst, Timothy P. Herbst, Troy D. Herbst,
Jerry E. Herbst, Terrible Herbst, Inc. and any other entities affiliated
with Jerry E. Herbst and/or Terrible Herbst, Inc. that have commercial
arrangements with the Borrower or its Subsidiaries (collectively, the “Herbst
Parties”) on or before December 3, 2008, February 2, 2009 (each
such date, the “Scheduled Forbearance Termination Date”);


 


(b)           the
occurrence of any Event of Default other than the Specified Defaults; and


 


(c)           the
date on which any breach of any of the conditions or agreements provided in
this Agreement shall occur, or the date on which any breach by any Loan Party
or any Herbst Party of any of the conditions or agreements provided in the
Restructuring Agreement shall occur (it being agreed that the breach of any
such condition or agreement shall constitute an immediate 


 


3

















 


Event of Default under the Credit Agreement without the requirement of
any demand, presentment, protest or notice of any kind to any Loan Party (all
of which each Loan Party waives));


 


provided that
(i) the Revolving Lenders shall have no obligation to make any further
Revolving Loans or other extensions of credit to any Loan Party, other than in
respect of Letters of Credit pursuant to Section 2.05(c) of the
Credit Agreement, (ii) each Loan Party shall comply with all limitations,
restrictions, covenants and prohibitions that would otherwise be effective or
applicable under the Loan Documents, (iii) nothing herein shall restrict,
impair or otherwise affect any of the Administrative Agent’s or the Lenders’
rights and remedies under any agreement containing subordination provisions in
favor of any of the Administrative Agent or the Lenders (including without
limitation the right to give any payment blockage notices to any of the
trustees in respect of the Subordinated Debt (including without limitation any
payment blockage notice based upon any Specified Default)) and (iv) nothing
herein shall be construed as a waiver by the Administrative Agent or any Lender
of any Specified Default.


 


Upon expiration of the Forbearance Period, the
agreement of the Administrative Agent and the Lenders hereunder to forbear
provisionally in the exercise of their respective rights and remedies under the
Credit Agreement and the other Loan Documents in respect of the Specified
Defaults during the Forbearance Period shall immediately terminate without the
requirement of any demand, presentment, protest or notice of any kind to any
Loan Party (all of which each Loan Party waives). Each of the Loan Parties
agrees that any of the Administrative Agent and the Lenders may at any time
thereafter proceed to exercise any and of their respective rights and remedies
under the Loan Documents or applicable law, including without limitation their
respective rights and remedies with respect to the Specified Defaults.


 


Any agreement by any of the Administrative Agent and
the Lenders to extend the Forbearance Period must be set forth in writing and
signed by each of the Administrative Agent and the Requisite Lenders. The
Administrative Agent and the Lenders are not obligated to extend the
Forbearance Period and may decide to do so (or not to do so) in their sole
discretion. Each of the Loan Parties acknowledges that each of the
Administrative Agent and the Lenders has not made any assurances concerning the
extension of the Forbearance Period.


 


3.             Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent specified in Section 5 below, but effective (except
as otherwise expressly provided in this Section 3) as of the date hereof,
the Credit Agreement shall be amended as follows:


 


(a)           References Generally. References in the Credit Agreement
(including references to the Credit Agreement as amended hereby) to “this
Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and
“hereof”) shall be deemed to be references to the Credit Agreement as amended
hereby.


 


(b)           Definition
of “Loan Documents”. The
definition of “Loan Documents” in Section 1.01 of the Credit Agreement is
hereby amended in its entirety to read as follows:


 


“Loan Documents”
means this Agreement, each Note, each Issuer Document, each Secured Swap
Contract, the Lead Arranger Fee Letter, the Administrative Agent Fee Letter,
each Guaranty, each Collateral Document, Amendment No. 1 to the Second
Amended and Restated Credit Agreement dated as of August 14, 2007,
Amendment No. 2 to the Second Amended and Restated Credit Agreement dated
as of August 14, 2007, the Omnibus Amendment No. 3 and Appointment
and Acceptance dated as of April 24, 2008 among Bank of America, N.A.,
Wilmington Trust Company, the Borrower, the Lenders parties thereto and the
Subsidiaries of the Borrower, Amendment No. 4 and Forbearance and
Standstill Agreement dated as of May 15, 2008 among the Borrower, the
other Loan Parties, certain Lenders parties thereto and the Administrative
Agent, Amendment No. 5 and Second Forbearance and Standstill Agreement
dated as of 


 


4

















 


November [  ],
2008 among the Borrower, the other Loan Parties, certain Lenders parties
thereto and the Administrative Agent, and any other amendment or certificate
executed and/or delivered pursuant to or in connection with this Agreement.


 


4.             Further Agreements. Subject to the satisfaction of the
conditions precedent specified in Section 5 below, but effective as of the
date hereof, notwithstanding anything in the Credit Agreement or any other Loan
Document to the contrary and in addition to the terms and provisions thereof
and without affecting in any respect the acknowledgments in Section 1
above and the other acknowledgments and agreements of the Loan Parties under
this Agreement:


 


(a)           The
parties hereto hereby agree as follows:


 


(i)            All accrued interest and fees under the
Credit Agreement shall be payable on the first Business Day of each calendar
month (commencing December 1, 2008) and otherwise in accordance with the
terms of the Credit Agreement.


 


(ii)           During the Forbearance Period, the Default Rate shall not apply and
interest in respect of the Loans shall accrue at the rates set forth in the
Credit Agreement without regard to Section 2.10(b) thereof.


 


(iii)          During the Forbearance Period, the Borrower shall be entitled to
convert Loans into Eurodollar Rate Loans and continue Loans as Eurodollar Rate
Loans in accordance with Section 2.04 of the Credit Agreement, so long as
any such Interest Period shall end on or before the Scheduled Forbearance
Termination Date then in effect.


 


(b)           The Loan Parties hereby agree as follows:


 


(i)            None of the Loan Parties shall make any
payment (whether of principal, interest, fees or any other amount, and whether
or not scheduled), nor fund, wholly or in part, any defeasance trust, on
account of or in connection with the Subordinated Debt, except for any payment
made not in violation of the terms of subordination governing such Subordinated
Debt (including without limitation any payment blockage notices delivered
thereunder).


 


(ii)           Without limiting the rights of the Administrative Agent and the Lenders
under Section 6.10 of the Credit Agreement, but subject to Section 10.07
of the Credit Agreement, the Loan Parties shall upon request give the
Administrative Agent and the Lenders and their advisors reasonably full and
timely access to the Loan Parties’ books, records, senior officers, directors,
senior level employees and any advisors hired by the Loan Parties, and shall
permit any of the foregoing Persons to review and copy all books and records
(including without limitation all books and records maintained in electronic
format) of each Loan Party.


 


(iii)          The Borrower shall pay, within 20 days following receipt of an invoice
thereof, all accrued fees and expenses of the Administrative Agent and the
Lenders incurred in connection with the Credit Agreement and the other Loan
Documents in accordance with the terms of the Credit Agreement and the other
Loan Documents. Nothing in this Agreement shall be construed or deemed to waive
or limit any obligation of the Borrower or any of the other Loan Parties to pay
fees and expenses (including without limitation legal fees) and expenses
incurred by the Administrative Agent or any Lender as provided in Section 10.04
of the Credit Agreement.


 


5.             Conditions. The agreements set forth in Sections 2, 3 and 4 above shall
become effective, as of the date hereof, upon satisfaction of the following
conditions:


 


5

















 


(a)           The
Administrative Agent shall have received counterparts of this Agreement,
executed and delivered by the Borrower and each other Loan Party, the
Administrative Agent and the Requisite Lenders.


 


(b)           The
Borrower shall have paid (i) the accrued interest and fees under the
Credit Agreement due on November 3, 2008, (ii) the accrued interest
(including without limitation default interest accruing at the Default Rate)
and fees under the Credit Agreement through the date immediately prior to the
date hereof, and (iii) all costs, expenses and fees (including without
limitation of legal counsel) as set forth in Section 10.04 of the Credit
Agreement, in the case of each of clause (ii) and (iii), as set forth on
Schedule C hereto.


 


(c)           The
representations and warranties contained in this Agreement shall be true and
correct and no Default or Event of Default (other than the Current Defaults)
shall have occurred and be continuing.


 


(d)           The
Administrative Agent shall have received such other documents, certificates and
instruments as it or any Lender reasonably requests through the date of this
Agreement.


 


6.             Limited Effect of Agreement. Except as expressly provided in this
Agreement, the Credit Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. This Agreement shall not be
deemed or otherwise construed: (i) to be a waiver of, or consent to or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document; (ii) to prejudice any other right or
rights that the Administrative Agent or any Lender, or any of them, may now
have or may have in the future under or in connection with the Credit Agreement
or any other Loan Document, as such documents may be amended, restated or
otherwise modified from time to time; or (iii) to be a commitment or any
other undertaking or expression of any willingness to engage in any further
discussion with any Loan Party or any other Person with respect to any waiver,
amendment, modification or any other change to the Credit Agreement or any
other Loan Document or any rights or remedies arising in favor of the
Administrative Agent and the Lenders, or any of them, under or with respect to
any such documents. Neither the requirements of good faith and fair dealing nor
any other theory, concept or argument shall require any Lender to impart upon
any Loan Party any further or greater benefits, to suffer any prejudice or
impairment of any kind whatsoever, or to tolerate any noncompliance with this
Agreement and any other Loan Document.


 


7.             Release. Each Loan Party, on behalf of itself, and any Person claiming by,
through or under such Loan Party (collectively, the “Loan Party Group”)
acknowledges that it has no claim, counterclaim, setoff, recoupment, action or
cause of action of any kind or nature whatsoever (“Claims”) against all
or any of the Administrative Agent or any of the Lenders or any of their
respective directors, officers, employees, agents, attorneys, financial
advisors, legal representatives, affiliates, shareholders, partners, successors
and assigns (the Administrative Agent or any of the Lenders and their respective
directors, officers, employees, agents, attorneys, financial advisors, legal
representatives, affiliates, shareholders, partners, successors and assigns are
jointly and severally referred to as the “Lender Group”), that directly
or indirectly arise out of or are based upon or in any manner connected with
any “Prior Event” (as defined below), and each Loan Party on behalf of itself
and all the other members of the Loan Party Group hereby releases each member
of the Lender Group from any liability whatsoever should any Claims nonetheless
exist. As used herein the term “Prior Event” means any transaction,
event, circumstances, action, failure to act or occurrence of any sort or type,
whether known or unknown, which occurred, existed, was taken, permitted or begun
prior to the execution of this Agreement and occurred, existed, was taken,
permitted or begun in accordance with, pursuant to or by virtue of any terms of
the Credit Agreement, this Agreement, any other Loan Document or any of the
transactions contemplated herein or therein or any oral or written agreement
relating to any of the foregoing, including without limitation any approval or
acceptance given or denied. This Section 7 shall survive the termination
of this Agreement and shall remain in full force and effect even if any of the
conditions set forth in Section 5 above are not satisfied.


 


6

















 


8.             Representations and Warranties. By its execution hereof, each of the Loan
Parties hereby certifies that each of the representations and warranties set
forth in the Credit Agreement (as amended hereby) and the other Loan Documents
in respect of such Loan Party is true and correct in all material respects as
of the date hereof as if fully set forth herein (other than as a result of the
occurrence of the Current Defaults and except to the extent such representation
or warranty is expressly stated to have been made as of a specified date, in
which case such representation or warranty shall be true and correct in all material
respects as of such specified date), except for those representations and
warranties listed on Schedule B hereto, and that as of the date hereof no
Default or Event of Default (other than the Current Defaults) has occurred and
is continuing.


 


9.             Reversal of Payments. To the extent any Loan Party makes a
payment or payments to the Administrative Agent or any Lender pursuant to this
Agreement or any other Loan Document that are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause (in each case, in whole or
in part), then, to the extent of such payment or proceeds repaid, the Obligations
or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if such payment or proceeds had not been received by the
Administrative Agent or such Lender, as the case may be.


 


10.           Governing Law; Counterparts; Electronic
Execution; Misc. This
Agreement shall be governed, construed and interpreted in accordance with the
laws of the State of New York applicable to contracts made and to be performed
in such State and shall be subject to Section 10.16 of the Credit Agreement.
The terms of this Agreement may be waived, altered or amended only by an
instrument in writing duly executed by each Loan Party and the Administrative
Agent (with the consent of the Requisite Lenders). This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of this Agreement by electronic
transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement. Except as provided in this Agreement, the Credit
Agreement shall remain unchanged and in full force and effect.


 


11.           Survival of Obligations. All covenants, agreements and other
obligations of the Loan Parties under this Agreement which do not terminate on
the Forbearance Maturity Date pursuant to their express terms shall survive the
occurrence of the Forbearance Maturity Date and shall thereafter be enforceable
against the Loan Parties according to their terms.


 


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7
















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above written.


 


 


	
   

  	
  WILMINGTON TRUST COMPANY,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  A. Hanley

  
	
   

  	
   

  	
  Name: James A. Hanley

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  HERBST GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FLAMINGO
  PARADISE GAMING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MARKET
  GAMING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CARDIVAN
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CORRAL
  COIN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CORRAL
  COUNTRY COIN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  



 

















 


	
   

  	
  E-T-T
  ENTERPRISES L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-T-T,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HGI –
  ST. JO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HGI –
  LAKESIDE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HGI –
  MARK TWAIN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  SANDS REGENT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  



 

















 


	
   

  	
  ZANTE
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LAST
  CHANCE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CALIFORNIA
  PROSPECTORS, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PLANTATION
  INVESTMENTS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DAYTON
  GAMING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  PRIMADONNA COMPANY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
   

  	
  Name: Troy D. Herbst

  
	
   

  	
   

  	
  Title: Manager

  



 

















 


Schedule A


 


Specified Defaults


 


1.               The failure of the Loan Parties to deliver on
March 31, 2008 an audited financial statement that is not subject to any “going
concern” or like qualification or exception in accordance with Section 6.01(a) of
the Credit Agreement (the “Financial Statement Default”).


 


2.               An Event of Default under Section 6.02(a) of
the Credit Agreement solely with respect to the inability to certify as to
paragraph 3 of the Compliance Certificate as a result of the Financial
Statement Default, the Financial Covenant Default (as defined below), the SEC
Reporting Default (as defined below), the Senior Subordinated Notes Default (as
defined below) and the other Specified Defaults set forth herein.


 


3.               An Event of Default under Section 6.04
of the Credit Agreement solely as a result of failure to pay amounts due under
the Senior Subordinated Notes.


 


4.               An Event of Default under Sections 7.12, 7.13
and 7.14 of the Credit Agreement solely with respect to the Fiscal Quarters
ending March 31, 2008, June 30,
2008, September 30, 2008 and December 31, 2008 (together, the “Financial
Covenant Default”).


 


5.               An Event of Default under Section 8.01(a) of
the Credit Agreement solely as a result of the failure of the Borrower to pay
the outstanding interest amount of the Loans on November 3, 2008; provided
that the parties acknowledge that such interest payment has been paid as of the
date of this Agreement.


 


6.               An Event of Default under Section 8.01(a) of
the Credit Agreement solely as a result of the failure of the Borrower to pay
the outstanding principal amount of the Loans on November 6, 2008 as
required pursuant to the Notice of Acceleration delivered to the Borrower on
such date.


 


7.               An Event of Default under Section 8.01(e) of
the Credit Agreement solely as a result of failure to (i) file reports with the Securities and
Exchange Commission (“SEC”) within the time periods specified in the SEC’s rules and
regulations, including the Company’s failure to satisfactorily file management’s
report on internal control over financial reporting in connection with its
Annual Report on Form 10-K for the year ended December 31, 2007 (the “SEC
Reporting Default”), and (ii) pay interest due under the Senior
Subordinated Notes (the “Senior Subordinated Notes Default”), in each
case unless such Event of Default results in the acceleration of any of the
Senior Subordinated Notes.


 


8.               An Event of Default under Section 8.01(g) of
the Credit Agreement solely with respect to the failure to make required
payments under the Senior Subordinated Notes to the extent that such failure is
deemed to mean that the Borrower has become unable or has failed generally to
pay its debts as they become due.


 


9.               An Event of Default under Section 8.01(j) of
the Credit Agreement solely resulting from the succession
to Wilmington Trust Company as administrative agent from the predecessor
Administrative Agent under the Credit Agreement.


 


10.         Events of Default pursuant to Sections
6.01(b), (d) and (e) of the Credit Agreement so long as any such
Event of Default is cured within five Business Days after the occurrence
thereof.


 

















 


Schedule B


 


Representations and Warranties Not Subject to
Paragraph 8


 


1.               The representation and warranty in the second
sentence of Section 5.02 of the Credit Agreement with respect to
compliance with Contractual Obligations solely to the extent the Borrower has
not made, or does not make, required payments under the Senior Subordinated
Notes.


 


2.               The representations and warranties
in Section 5.07 of the Credit Agreement solely to the extent (a) the
Borrower has not made, or does not make, required payment under the Senior Subordinated Notes or (b) Specified
Defaults have occurred and are continuing under the Credit Agreement and the
other Loan Documents.


 

















 


Schedule C


 


Fee Schedule