**Exhibit10.58**

** **

**FIRST AMENDMENT TOCREDIT AGREEMENT**

** **

THIS FIRST AMENDMENT TOCREDIT AGREEMENT (“First Amendment”) is made and entered into as of the 15thday of December, 2003, by and among HERBST GAMING, INC., a Nevada corporation(the “Borrower”), FLAMINGO PARADISE GAMING, LLC, a Nevada limited liabilitycompany, dba TERRIBLE’S HOTEL & CASINO (the “Collateral Guarantor”) andU.S. BANK NATIONAL ASSOCIATION (herein together with its successors and assignsthe “Lender”).

 

R_E_C_I_T_A_L_S;

 

WHEREAS:

 

A.                                   Borrower,Collateral Guarantor and Lender entered into a Credit Agreement dated as ofSeptember 6, 2002 (the “Existing Credit Agreement”) for the purpose ofestablishing a secured revolving line of credit in favor of Borrower, up to themaximum principal amount of Ten Million Dollars ($10,000,000.00), on the termsand subject to the conditions, covenants and understandings therein set forth.

 

B.                                     For thepurpose of this First Amendment, all capitalized words and terms not otherwisedefined herein shall have the respective meanings and be construed herein asprovided in Section 1.01 of the Existing Credit Agreement and any reference toa provision of the Existing Credit Agreement shall be deemed to incorporatethat provision as a part hereof, in the same manner and with the same effect asif the same were fully set forth herein.

 

C.                                     Borrower andCollateral Guarantor desire to attend the Existing Credit Agreement for thefollowing purposes:

 

(i)                                     Extending theMaturity Date to December 15, 2004;

 

(ii)                                  Modifying anddeleting certain of the Financial Covenants and Definitions relating thereto ashereinafter provided.

 

D.                                    Lender iswilling to agree to the amendments and modifications described hereinabove,subject to the term and conditions which are hereinafter set forth.

 

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NOW,THEREFORE, in consideration of the foregoing and other good and valuableconsiderations, the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree to the amendments and modifications to the ExistingCredit Agreement in each instance effective as of the First Amendment EffectiveDate, as specifically hereinafter provided as follows:

 

1.                                       Definitions.  Section 1.01 of the Existing CreditAgreement entitled “Definitions” shall be and is hereby amended to include thefollowing definitions.  Those termswhich are currently defined by Section 1.01 of the Existing Credit Agreementand which are also defined below shall be superseded and restated by theapplicable definition set forth below:

 

“AmendmentFee” shall have the meaning set forth in Paragraph 5 of the First Amendment.

 

“ComplianceCertificate” shall mean a compliance certificate as described in Section5.08(c) of the Credit Agreement, the form of which is more particularlydescribed on “Exhibit D”, affixed to the First Amendment and by this referenceincorporated herein and made a part hereof, which revised Exhibit D shall fullysupersede and restate Exhibit D attached to the Existing Credit Agreement.

 

“CreditAgreement” shall mean the Existing Credit Agreement as amended by the FirstAmendment, together with all Schedules, Exhibits and other attachments thereto,as it may be further amended, modified, extended, renewed or restated from timeto time.

 

“DebtService Coverage Ratio” as of the end of any Fiscal Quarter shall mean withreference to the Herbst Consolidation:

 

EBITDAfor the Fiscal Quarter under review, together with the most recently endedthree (3) preceding Fiscal Quarters

 

Dividedby (÷)

 

Thesum of: (i) the aggregate amount of Interest Expense (expensed andcapitalized), plus (ii) the aggregate of Mandatory Debt Reductions; in eachcase determined for the Fiscal Quarter under review together with the mostrecently ended three (3) preceding Fiscal Quarters.

 

“ExistingCredit Agreement” shall have the meaning set forth in Recital Paragraph A ofthe First Amendment.

 

“FirstAmendment” shall mean the First Amendment to Credit Agreement.

 

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“FirstAmendment Effective Date” shall mean December 15, 2003, subject to theoccurrence of each of the conditions precedent set forth in Paragraph 5 of theFirst Amendment.

 

“MaturityDate” shall mean December 15, 2004, as may be further extended from time totime for one (1) year periods in the manner and subject to the terms of Section2.13 of the Credit Agreement.

 

2.                                       Extension ofMaturity Date.  As of theFirst Amendment Effective Date, the Maturity Date shall be and is herebyextended to December 15, 2004 and the definition of “Maturity Date” shall beand is hereby modified as set forth in the definition of Maturity Datecontained in the First Amendment.

 

3.                                       Replacement ofFixed Charge Coverage Ratio with Debt Service Coverage Ratio Covenant.  As of the First Amendment Effective Date,Section 6.02 of the Existing Credit Agreement entitled “Fixed Charge CoverageRatio” shall be and is hereby fully amended and restated in its entirety asfollows:

 

“Section6.02.                       Debt ServiceCoverage Ratio. Commencing on the First Amendment Effective Date and continuing as ofeach Fiscal Quarter end until Credit Facility Termination, the HerbstConsolidation shall maintain a Debt Service Coverage Ratio no less than 1.65 to1.00.”

 

4.                                       Deletion ofSections 6.01 and 6.03.  Asof the First Amendment Effective Date, Section 6.01 entitled “Cash FlowLeverage Ratio” and Section 6.03 entitled “Liquidity Requirement” shall be andare hereby deleted in their entirety.

 

5.                                       ConditionsPrecedent to First Amendment Effective Date.  The occurrence of the First Amendment Effective Date is subjectto Lender having received the following documents and payments, in each case ina form and substance reasonably satisfactory to Lender, and the occurrence ofeach other condition precedent set forth below on or before December 19, 2003:

 

a.                                       Due executionby Borrower, Collateral Guarantor and Lender of three (3) duplicate originalsof this First Amendment;

 

b.                                      Corporate andpartnership resolutions or other evidence of requisite authority of Borrowerand each of the Subsidiary Guarantors to execute the First Amendment;

 

c.                                       Payment ofnon-refundable fee (“Amendment Fee”) to Lender in the amount of Thirty-SevenThousand Five Hundred Dollars ($37,500.00);

 

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d.                                      Reimbursementto Lender by Borrower for all reasonable fees and out-of-pocket expensesincurred by Lender in connection with the First Amendment, including, but notlimited to, reasonable attorneys’ fees of Henderson & Morgan, LLC and allother like expenses remaining unpaid as of the First Amendment Effective Date; and

 

e.                                       Such otherdocuments, instruments or conditions as may be reasonably required by Lender.

 

6.                                       Representationsof Borrower and Collateral Guarantor.  Borrower and Collateral Guarantor hereby represent to the Lenderthat:

 

a.                                       Therepresentation and warranties contained in Article IV of the Existing CreditAgreement and contained in each of the other Loan Documents (other thanrepresentations and warranties which expressly speak only as of a differentdate, which shall be true and correct in all material respects as of such date)are true and correct on and as of the First Amendment Effective Date in allmaterial respects as though such representations and warranties had been madeon and as of the First Amendment Effective Date, except to the extent that suchrepresentations and warranties are not true and correct as a result of a changewhich is permitted by the Credit Agreement or by any other Loan Document orwhich has been otherwise consented to by Lender.

 

b.                                      Since the dateof the most recent financial statements referred to in Section 5.08 of theExisting Credit Agreement, no Material Adverse Change has occurred and no eventor circumstance which could reasonably be expected to result in a MaterialAdverse Change has occurred;

 

c.                                       No event hasoccurred and is continuing which constitutes a Default or Event of Defaultunder the terms of the Credit Agreement; and

 

d.                                      The execution,delivery and performance of this First Amendment has been duly authorized byall necessary action of Borrower, Collateral Guarantor and each of theSubsidiary Guarantors and this First Amendment constitutes a valid, binding andenforceable obligation of Borrower, Collateral Guarantor and each of theSubsidiary Guarantors.

 

7.                                       Incorporationby Reference.    This First Amendment shallbe and is hereby incorporated in and forms a part of the Existing CreditAgreement.

 

8.                                       Governing Law.            This FirstAmendment to Credit Agreement shall be governed by the internal laws of theState of Nevada without reference to conflicts of laws principles.

 

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9.                                       Counterparts.                       This FirstAmendment may be executed in any number of separate counterparts with the sameeffect as if the signatures hereto and hereby were upon the sameinstrument.  All such counterparts shalltogether constitute one and the same document.

 

10.                                 Continuance ofTerms and Provisions.    All of the terms andprovisions of the Credit Agreement shall remain unchanged except asspecifically modified herein.

 

11.                                 Consent toFirst Amendment and Affirmation and Ratification of Subsidiary Guaranty.  Each of the Subsidiary Guarantors join inthe execution of this First Amendment for the purpose of evidencing theirrespective consent to the terms, covenants, provisions and conditions herein containedand contained in the Existing Credit Agreement.  Subsidiary Guarantors further join in the execution of this FirstAmendment for the purpose of ratifying and affirming their respectiveobligations under the Subsidiary Guaranty for the guaranty of the full andprompt payment and performance of all Indebtedness and Obligations under theCredit Facility, as modified and amended under this First Amendment.

 

12.                                 Additional/ReplacementExhibit Attached.                The following additional orreplacement Exhibits are attached hereto and incorporated herein and made apart of the Credit Agreement as follows:

 

Exhibit D -    Compliance Certificate (FirstRestated) – Form

 

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INWITNESS WHEREOF, the parties hereto have executed this First Amendment as ofthe day and year first above written.

 
|   | **BORROWER:**                                                                                                |
|--------|--------------------------------------------------------------------------------------------------------------|
|   |                                                                                                         |
|   | HERBST  GAMING, INC.,  a Nevada corporation                                                                  |
|   |                                                                                                         |
|   |                                                                                                         |
|   | By                                                                                                           | /s/ Edward  Herbst |   |
|   |                                                                                                         | Edward  Herbst, |   |
|   |                                                                                                         | President |   |
|   |                                                                                                         |
|   | **COLLATERAL GUARANTOR:**                                                                                    |
|   |                                                                                                         |
|   | FLAMINGO  PARADISE GAMING, LLC, a  Nevada limited liability company dba  TERRIBLE’S HOTEL & CASINO  |
|   |                                                                                                         |
|   |                                                                                                         |
|   | By                                                                                                           | /s/ Edward  Herbst |   |
|   |                                                                                                         | Edward  Herbst, |   |
|   |                                                                                                         | Managing  Member |   |
|   |                                                                                                         |
|   | **SUBSIDIARY GUARANTORS:**                                                                                   |
|   |                                                                                                         |
|   | FLAMINGO  PARADISE GAMING, LLC,  a Nevada limited liability company, dba  Terrible’s Hotel & Casino |
|   |                                                                                                         |
|   |                                                                                                         |
|   | By                                                                                                           | /s/ Edward  Herbst |   |
|   |                                                                                                         | Edward  Herbst, |   |
|   |                                                                                                         | Managing  Member |   |

 

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|   | E-T-T, INC.,  a Nevada corporation                             |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   |                                                           |
|   | By                                                             | /s/ Edward Herbst |   |
|   |                                                           | Edward Herbst, |   |
|   |                                                           | President |   |
|   |                                                           |
|   |                                                           |
|   | MARKET GAMING, INC.,  a Nevada corporation                     |
|   |                                                           |
|   |                                                           |
|   | By                                                             | /s/ Edward Herbst |   |
|   |                                                           | Edward Herbst, |   |
|   |                                                           | President |   |
|   |                                                           |
|   |                                                           |
|   | E-T-T ENTERPRISES, L.L.C.,  a Nevada limited liability company |
|   |                                                           |
|   |                                                           |
|   | By                                                             | /s/ Edward Herbst |   |
|   |                                                           | Edward Herbst, |   |
|   |                                                           | Managing Member |   |
|   |                                                           |
|   |                                                           |
|   | CARDIVAN COMPANY,  a Nevada corporation                        |
|   |                                                           |
|   |                                                           |
|   | By                                                             | /s/ Edward Herbst |   |
|   |                                                           | Edward Herbst, |   |
|   |                                                           | President |   |

 

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|   | CORRAL COIN, INC., a Nevada  corporation         |
|--------|--------------------------------------------------|
|   |                                             |
|   |                                             |
|   | By                                               | /s/ Edward Herbst |   |
|   |                                             | Edward Herbst, |   |
|   |                                             | President |   |
|   |                                             |
|   |                                             |
|   | CORRAL COUNTRY COIN, INC.,  a Nevada corporation |
|   |                                             |
|   |                                             |
|   | By                                               | /s/ Edward Herbst |   |
|   |                                             | Edward Herbst, |   |
|   |                                             | President |   |
|   |                                             |
|   | **LENDER:**                                      |
|   |                                             |
|   | U.S. BANK  NATIONAL                              |
|   | ASSOCIATION                                      |
|   |                                             |
|   |                                             |
|   | By                                               | /s/ Denette  Corrales |   |
|   |                                             | Denette  Corrales, |   |
|   |                                             | Vice  President |   |

 

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