**Exhibit 10.89**

 

APN:  162-22-104-001

 
| RECORDING  REQUESTED BY, AND                 | Receipt/Conformed  Copy           |             |
|----------------------------------------------|-----------------------------------|------------------|
| WHEN  RECORDED RETURN TO:                    | Requestor:                        |             |
|                                         | CHICAGO  TITLE                    |             |
| Sheppard,  Mullin, Richter & Hampton LLP | 01/31/2005  12:36:32 T20050019121 |             |
| 333 South  Hope Street, 48th Floor           | Book/Instr:  20050131-0002386     |             |
| Los Angeles,  California 90071               | Trust Deed                        | Page Count:  8   |
| Attention:  Sylvia D. Lautsch, Esq.          | Fees: $21.00                      | N/C Fee:  $25.00 |
|                                         |                              |             |
| Mail  Property Tax Statements to:            | Frances  Deane                    |             |
|                                         | Clark County  Recorder            |             |
| c/o Herbst  Gaming, Inc.                     |                              |             |
| 5195 Las  Vegas Boulevard                    |                              |             |
| Las Vegas,  Nevada 89119                     |                              |             |
| Attention:  M. Higgins                       |                              |             |
|                                              |                                   |                  |  |

 

 

**FIRST AMENDMENT TO DEED OF TRUST WITH**

 

**ASSIGNMENT OF RENTS, SECURITY AGREEMENT ANDFIXTURE FILING**

 

This First Amendment to Deed of Trust with Assignment of Rents,Security Agreement and Fixture Filing, dated as of January 31, 2005 (“Amendment”),is by and between FLAMINGO PARADISE GAMING, LLC, a Nevada limited liabilitycompany (“Trustor”), and BANK OF AMERICA, N.A., a national banking association(“Bank of America”), as Administrative Agent for itself and the Lenders,hereinafter defined.  Bank of America, inits capacity as such Administrative Agent, is referred to herein as “Beneficiary.”

 

For valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties hereto hereby agree as follows:

 

1.                                       Recitalsand Certain Definitions.

 

1.1                                 ThisAmendment is a first amendment to that certain Deed of Trust with Assignment ofRents, Security Agreement and Fixture Filing dated June 10, 2004 (the “Deedof Trust”), executed by Trustor, as trustor, for the benefit of Bank of Americaas Administrative Agent for certain lenders, as beneficiary.  The Deed of Trust was recorded on June 10,2004, in Book no. 20040610 as Instrument No. 0002953 in the Official Records ofClark County, Nevada (the “Official Records”).

 

1.2                                 ThisAmendment is entered into:

 

(a)                                  with reference tothat certain Credit Agreement dated as of June 10, 2004 (“Original CreditAgreement”), among Herbst Gaming, Inc., a Nevada corporation (“Borrower”), thelenders party thereto (“Original Lenders”) and Bank of America asAdministrative Agent for the Original Lenders;

 

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(b)                                 with reference to thatcertain Amended and Restated Credit Agreement, dated as of October 8, 2004by and among Borrower, Bank of America as Administrative Agent, and the otherlender parties (collectively, “Lenders”) thereto (“Credit Agreement”), whichCredit Agreement amended and restated in its entirety the Original CreditAgreement, and which provided for the extension of Revolving Loans to theBorrower in the aggregate principal amount of $175,000,000, and for theextension of Term Loans to the Borrower under certain circumstances;

 

(c)                                  with reference tothat certain Term Joinder Agreement dated concurrently herewith by and amongBorrower, Bank of America as Administrative Agent and the other Lenders, whichamends the Credit Agreement by providing for the extension of Term Loans to theBorrower in the aggregate principal amount of $100,000,000; and

 

(d)                                 with reference tocertain other documents of even date herewith which constitute “Loan Documents”as defined in the Credit Agreement. This Amendment and the Credit Agreement,together with the other Loan Documents being executed substantiallyconcurrently herewith, are collectively referred to herein as the “ModificationDocuments”.

 

1.3                                 TheModification Documents modify obligations that are presently secured by theDeed of Trust, including, without limitation, certain obligations under theOriginal Credit Agreement evidenced by the Notes, a note evidencing the SwingLine Loan and the Secured Swap Contracts. Such modifications include, withoutlimitation, (i) the conversion of certain existing term loans under theOriginal Credit Agreement to revolving credit facilities, (ii) the increase incertain existing Revolving Commitments under the Original Credit Agreement to$175,000,000, and (iii), subject to the satisfaction of certain conditions, theextension of new Term Loans in an aggregate principal amount not to exceed$100,000,000.

 

1.4                                 Anycapitalized term used and not otherwise defined herein (A) shall have themeaning given to such term in the Deed of Trust, or (B) if not defined in theDeed of Trust, shall have the meaning given to such term in the CreditAgreement.

 

2.                                       SecuredObligations Under Deed of Trust.

 

2.1                                 Section 1.2.1of the Deed of Trust is hereby amended in its entirety to read as follows:

 

“1.2.1                  Trustor makes the grant, bargain,conveyance, sale, transfer and assignment set forth in Section 1.1 andgrants the security interest set forth in Article 3 for the purpose ofsecuring the following obligations (collectively, the “Secured Obligations”) inany order of priority that Beneficiary may choose:

 

(a)                                  Except as specifiedin Section 1.2.2 below, the payment and performance of each obligation ofTrustor pursuant to that certain Guaranty (as amended as of the date hereof,the “Guaranty”) dated June 10, 2004, entered into by Trustor in favor ofBeneficiary pursuant to that Instrument of Joinder to Guaranty

 

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dated as of October 8, 2004. The Guaranty has been entered into by Trustor to, among other things,guaranty the payment and performance of all obligations of Borrower toBeneficiary under the Credit Agreement and all related Loan Documents, pursuantto which the Lenders have extended or have agreed to extend to the Borrowercertain secured revolving and term credit facilities, presently in theaggregate principal amount of $275,000,000 (the “Commitment”), including, butnot limited to the payments of all amounts owing under the Swing Line Loan, thepayment of all amounts owing with respect to the Letters of Credit, includingwithout limitation unreimbursed drawings and obligations to furnish cashcollateral as provided in the Credit Agreement, and the payment of all amountsowing under any and all Secured Swap Contracts entered into by the Borrowerwith any Lender or Affiliate thereof;

 

(b)                                 The payment andperformance of all future advances and other obligations that Trustor or anyother person may owe to Beneficiary and/or any Lender (whether as principal,surety or guarantor), when a writing evidences Trustor’s and Beneficiary’sagreement that such advances or obligations be secured by this Deed of Trust;

 

(c)                                  The payment andperformance of all obligations of Trustor under this Deed of Trust; and

 

(d)                                 The payment andperformance of all modifications, amendments, extensions and renewals, howeverevidenced, of any of the Secured Obligations described in clause (a), (b) or(c) above.”

 

3.                                       CertainGlobal Changes to References.  Allreferences in the Deed of Trust to the “Credit Agreement” shall mean and referto the Credit Agreement, as amended and restated.  All references in the Deed of Trust to the “Notes”shall mean and refer to the Notes, as defined in the Credit Agreement.  All references in the Deed of Trust to the “Deedof Trust” shall mean and refer to the Deed of Trust as amended hereby.

 

4.                                       Noticesto Beneficiary.  For purposes ofSections 4 and 9.11 of the Deed of Trust, Beneficiary’s notice address ishereby amended as follows:

 

Bank of America, N.A.

Mail Code: TX1-492-14-11

Bank of America Plaza

901 Main St., 14th Floor

Dallas, TX 75202-3714
| Attention: | Chris M.  Levine, Assistant Vice President |
|------------|--------------------------------------------|
|       | Agency  Management Officer II              |
|       | GCIB Agency  Management Central I          |

 

5.                                       NoOther Amendment.  Except as expresslymodified hereby, the Deed of Trust remains in full force and effect.

 

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6.                                       Miscellaneous.  This Amendment shall bind, and shall inure tothe benefit of, the successors and assigns of the parties.  This document may be executed in counterpartswith the same force and effect as if the parties had executed one instrument,and each such counterpart shall constitute an original hereof.  This Amendment shall be governed by andconstrued in accordance with the laws of the State of Nevada.

 

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IN WITNESS WHEREOF, Trustor and Beneficiary have caused this Amendmentto be duly executed as of the date first written above.

 
|   | “Trustor”:                |
|--------|-------------------------------------|
|   |                                |   |
|   | FLAMINGO  PARADISE GAMING, LLC,     |
|   | a Nevada  limited liability company |
|   |                                |   |
|   |                                |   |
|   | By:                                 | /s/ Edward  Herbst |   |
|   | Name:                               | Edward  Herbst |   |
|   | Its:                                | Manager |   |

 

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|   | “Beneficiary”: |
|--------|--------------------------|
|   |                     |   |
|   | BANK OF  AMERICA, N.A.,  |
|   | as  Administrative Agent |
|   |                     |   |
|   |                     |   |
|   | By:                      | /s/ Chris M.  Levine |   |
|   | Name:                    | Chris M.  Levine |   |
|   | Its:                     | Assistant  Vice President |   |

 

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| ACKNOWLEDGMENTS                           |   |   |   |   |
|-------------------------------------------|--------|--------|--------|--------|
|                                      |   |   |   |   |
| STATE OF  Nevada                          | )      |   |   |   |
|                                      | ) ss   |   |   |   |
| COUNTY OF  Clark    ) |   |   |   |

 

This instrument was acknowledged before me on Jan 25, 2005 by EdwardHerbst as Manager of FLAMINGO PARADISE GAMING, LLC, a Nevada limited liabilitycompany.

 

[Seal]

 

 
|   | /s/ Jenifer  E. Cannon          |    |
|--------|---------------------------------|---------|
|   | (signature of notarial officer) |    |
|   | Notary  Public                  |    |
|   | (Title and rank)                |    |
|   |                            |    |
|   | My  commission expires:         | 1/17/07 |   |
|        |                                 |         |  |

 

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ACKNOWLEDGMENTS

 
| STATE OF  Texas                            | )      |   |   |   |   |
|--------------------------------------------|--------|--------|--------|--------|--------|
|                                       | ) ss   |   |   |   |   |
| COUNTY OF  Dallas    ) |   |   |   |   |

 

This instrument was acknowledged before me on Jan 25, 2005 by Chris M.Levine as A.V.P. of Bank of America, N.A., a national banking association.

 

[Seal]

 

 
|   | /s/ Patricia  A. Tomek          |     |
|--------|---------------------------------|----------|
|   | (signature of notarial officer) |     |
|   | Sr. Risk  Control Specialist    |     |
|   | (Title and rank)                |     |
|   |                            |     |
|   | My  commission expires:         | 11-25-05 |   |
|        |                                 |          |  |

 

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