**Exhibit 10.85**

 

Published CUSIP No. 42703YAF4

 

TERMJOINDER AGREEMENT

 

THIS TERM JOINDER AGREEMENT(this “Agreement”), dated as of January 31, 2005, is among Herbst Gaming, Inc.,a Nevada corporation (“Borrower”), each of the Increasing Lenders described below,each of the Joining Lenders described below, and Bank of America, N.A., asAdministrative Agent (the “Administrative Agent”), pursuant to the Amended andRestated Credit Agreement dated as of October 8, 2004, among Borrower, theLenders referred to therein and Administrative Agent (as amended, the “CreditAgreement”).

 

RECITALS

 

A.                                   The creditfacilities provided by the Lenders under the Credit Agreement have heretoforeconsisted of the Aggregate Revolving Commitments in the principal amount of$175,000,000.

 

B.                                     Pursuant toSection 2.16 of the Credit Agreement, Borrower is entitled to increase thecredit facilities under the Credit Agreement by means of the $100,000,000 ofadditional Term Commitments contemplated herein.

 

C.                                     Banc of AmericaSecurities LLC and Lehman Brothers, Inc. have served as Joint Lead Arrangersand Joint Book Managers for the $100,000,000 in Term Loan credit facilitiescontemplated by this Agreement.  Bank ofAmerica, N.A. is the Administrative Agent for the Term Loan credit facilities,and Lehman Commercial Paper Inc. is the Documentation Agent for the Term Loancredit facilities.

 

D.                                    The Term Loanscontemplated by this Agreement shall be made substantially concurrently withthe consummation of the Grace Asset Purchase.

 

E.                                      Certain of theLenders already party to the Credit Agreement which are designated as the “IncreasingLenders” on Schedule 1 hereto have agreed to extend Term Commitments under theCredit Agreement.

 

F.                                      The Personslisted on Schedule 1 hereto as “Joining Lenders” have not heretofore beenLenders party to the Credit Agreement, but by this Agreement will become newLenders and have Term Commitments as set forth on Schedule 1.

 

NOW THEREFORE, the parties hereto agrees as follows:

 

AGREEMENT

 

1.                                       Definitions. This Agreement is one of the Loan Documents.  Terms defined in the Credit Agreement and nototherwise defined in this Agreement shall have the meanings given those termsin the Credit Agreement when used herein and such definitions are incorporatedherein as though set forth in full.  Inaddition, as used herein, the following terms shall have the meaningsrespectively set forth after each:

 

“TermApplicable Rate” means, with respect to the Term Loans, during each PricingPeriod:

 

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(a)at all times prior to May 31, 2005, and thereafter in respect of each PricingPeriod in respect of which the Total Debt to EBITDA Ratio of the Fiscal Quarterending approximately two months prior to the first day of that Pricing Periodis greater than or equal to 4.00:1.00, (i) in respect of each Eurodollar Loan,the Eurodollar Rate plus 2.25% per annum, and (ii) in respect of each Base RateLoan, the Base Rate plus 1.00% per annum; and

 

(b)following May 31, 2005, if the Total Debt to EBITDA Ratio of the Fiscal Quarterending approximately two months prior to the first day of that Pricing Periodis less than 4.00:1.00, then (i) in respect of each Eurodollar Rate Loan, theEurodollar Rate plus 2.00% per annum, and (ii) in respect of each Base RateLoan, the Base Rate plus 0.75% per annum;

 

provided, in each case, that if Borrower fails todeliver a Compliance Certificate in respect of any Fiscal Quarter prior to thefirst day of the related Pricing Period, then the pricing set forth in clause(a) above shall apply as of the first Business Day of such Pricing Period untilthe date upon which the required Compliance Certificate is delivered.

 

“TermEffective Date” means thedate upon which all of conditions set forth in Section 15 hereof shall havebeen completely satisfied or otherwise waived by Administrative Agent.

 

“TermMaturity Date” means thesixth anniversary of the Term Effective Date.

 

2.                                       Term Loans.  By the execution and delivery of thisAgreement, each of the Term Lenders hereby becomes a party to the CreditAgreement as a Lender, and the Borrower and the Administrative Agent agree toaccept and admit the Term Lenders as Lenders under the Credit Agreement.  Subject to the terms and conditions set forthherein and in the Credit Agreement, each Term Lender severally agrees to make aTerm Loan to the Borrower on the Closing Date in the amount of its TermCommitment.  Term Loans may be Base Rate Loans or Eurodollar RateLoans, as further provided herein.  No Term Loan which is at any time prepaid orrepaid may be reborrowed, but each Term Loan may be converted, in whole or inpart, to a Term Loan of another Type, or continued from time to time, in themanner contemplated by Section 2.03 of the Credit Agreement.

 

3.                                       VoluntaryPrepayment of the Term Loans.  The Borrower may, upon notice to theAdministrative Agent, at any time or from time to time voluntarily prepay theTerms Loans in the manner set forth in Section 2.06 of the Credit Agreement.  

 

4.                                       Amortization ofthe Term Loans.  

 

(a)                                  On eachQuarterly Payment Date, commencing with the first Quarterly Payment Date whichis three months or more following the date of this Agreement, Borrower shallrepay the then outstanding principal amount of the Term Loans in the principalamount of $250,000.

 

(b)                                 In any event,Borrower shall repay to the Term Lenders on the Term Maturity Date theaggregate principal amount of the Term Loans outstanding on such date.

 

5.                                       Interest.  The Term Loans shall bear interest on theoutstanding principal amount thereof as provided in Section of 2.10 of CreditAgreement, including without limitation those provisions relating to theDefault Rate, provided that the term “Applicable Rate” contained therein shallrefer to the Term Applicable Rate.

 

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6.                                       Use of Procceds.  Borrower shall use the proceeds of the TermsLoans for the acquisition of the Grace Assets and for other proper businesspurposes of Borrower and its Subsidiaries.

 

7.                                       Borrower’sReaffirmation of the Liens.  Borrower hereby confirms that (a) theObligations secured by Borrower under the various Loan Documents shall bedeemed to include, without limitation, all Obligations arising under the TermsLoans, and (b) the Liens granted under the Loan Documents shall be granted forthe benefit of the Lenders, including, without limitation, the Term Lenders, onan equal, ratable and pari passu basis.

 

8.                                       Assumption byIncreasing Lenders.  By signingthis Agreement, each of the Increasing Lenders agrees that, concurrently withthe effectiveness of this Agreement, it shall become a Term Lender under theCredit Agreement with a Term Commitment in the amount set forth opposite suchIncreasing Lender’s name on Schedule 1.

 

9.                                       Joinder byJoining Lenders.  By signingthis Agreement, each of the Joining Lenders agrees that, concurrently with theeffectiveness of this Agreement, it shall become a Term Lender under the CreditAgreement and its Term Commitment shall be in the amount set forth oppositesuch Joining Lender’s name on Schedule 1. Each Joining Lender agrees that it will be bound by all terms,provisions, conditions, obligations and duties applicable to a Lender under theCredit Agreement and other Loan Documents.

 

10.                                 Acceptance ofIncreased Commitment by Borrower.  Borrower hereby accepts the Term Commitmentof each of the Term  Lenders.

 

11.                                 Representationsand Warranties of Borrower.  Borrower represents and warrants to theAdministrative Agent and the Lenders that (a) no Default or Event of Defaulthas occurred and remains continuing, and (b) each of the representations andwarranties of Borrower set forth in the Credit Agreement is true and correct asof the date hereof (other than those which relate by their terms solely toanother date).

 

12.                                 Representations,Warranties and Covenants of the Joining Lenders.  Each of the Joining Lenders hereby severallyrepresents, warrants and covenants that:

 

(a)                                  it is anEligible Assignee.

 

(b)                                 it has agreedto become a party to the Credit Agreement solely in reliance upon its ownindependent investigation of the financial and other circumstances surroundingBorrower and all aspects of the transactions evidenced by or referenced in theLoan Documents, or has otherwise satisfied itself thereto, and that it is notrelying upon any representation, warranty or statement of Administrative Agentin connection with the assumption made hereby. Each Joining Lender further acknowledges that it will, independently andbased upon its review of such documents and information as it deems appropriateat the time, continue to make its own credit decisions in connection with theassumption made hereby.

 

(c)                                  it hasexperience and expertise in the making of or investing in loans of the typemade under the Credit Agreement and with respect to the other types of creditwhich may be extended under the Credit Agreement; and that it has received,reviewed and approved copies of all Loan Documents.

 

(d)                                 It has dulyauthorized, executed and delivered this Agreement, and it is legally entitledto enter into the transactions contemplated herein.

 

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(e)                                  NeitherAdministrative Agent nor any other Lender shall be responsible to such JoiningLender for the execution, effectiveness, accuracy, completeness, legal effect,genuineness, validity, enforceability, collectibility or sufficiency of any ofthe Loan Documents (other than its own due execution of the Loan Documents) orfor any representations, warranties, recitals or statements made therein or inany written or oral statement or in any financial or other statements,instruments, reports, certificates or any other documents made or furnished ormade available by Administrative Agent to such Joining Lender (other thanwritten representations, warranties, recitals or statements made by such partytherein) or by or on behalf of Borrower to Administrative Agent and the Lendersor such Joining Lender in connection with the Loan Documents and thetransactions contemplated thereby or for the financial condition or businessaffairs of Borrower or any other Person liable for the payment of any Loan orpayment of amounts owed in connection with other extensions of credit under theCredit Agreement or any other matter. The Administrative Agent shall not be required to ascertain or inquireas to the performance or observance of any of the terms, conditions,provisions, covenants or agreements contained in any of the Loan Documents oras to the use of the proceeds of the Loans or other extensions of credit underthe Credit Agreement or as to the existence or possible existence of anyDefault or Event of Default.

 

13.                                 Representations and Warranties ofIncreasing Lenders.  Each of the Increasing Lenders herebyrepresents and warrants that it has duly authorized, executed and deliveredthis Agreement and it is legally entitled to enter into the transactionscontemplated herein..

 

14.                                 Waiver of Missouri Purchase. The Administrative Agent and the Increasing Lenders (which IncreasingLenders constitute the Requisite Lenders under the Credit Agreement), herebywaive the requirement of Section 2.16 of the Credit Agreement that the entiretyof the Grace Asset Purchase be consummated concurrently with the extension ofthe Term Loans, provided that the Grace Assets located in and associatedwith the State of Iowa are purchased substantially concurrently with the makingof the Term Loans.

 

15.                                 ConditionsPrecedent.  Theeffectiveness of this Agreement is subject to the satisfaction of each of thefollowing conditions:

 

(a)                                  Documentation.  Administrative Agent shall have received thefollowing documents (in such number as Administrative Agent shall reasonablyrequest), each in form and substance acceptable to Administrative Agent:

 

(1)                                  a fullyexecuted original of this Agreement;

 

(2)                                  executed TermNotes in favor of each of the Term Lenders reflecting its Term Commitment;

 

(3)                                  a fully executed original of the Consentand Reaffirmation of Loan Parties, substantially in the form attached hereto asSchedule 2;

 

(4)                                  an amendment to the Deed of Trust executedby Flamingo Paradise with respect to the real property and improvementsconstituting Terrible’s Hotel & Casino to secure the Flamingo ParadiseGuaranty increasing the amount of the secured obligations thereunder to reflectthe increase of the Revolving Commitment to $175,000,000 and to secure the TermLoans in an amount which is not less than $100,000,000;

 

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(5)                                  an amendment to the fee and leaseholdDeeds of Trust executed by Market Gaming with respect to the real property andimprovements constituting its Henderson, Nevada casino to secure the MarketGaming Guaranty increasing the amount of the secured obligations thereunder toreflect the increase of the Revolving Commitment to $175,000,000 and to securethe Term Loans in an amount which is not less than $100,000,000;

 

(6)                                  amendments to the leasehold Deeds ofTrust executed by E-T-T, Inc. in respect of its interests in the casinoproperties located at Town Center, Pahrump at Lakeside, Pahrump and at SearchlightTruck Stop, Searchlight and its interest in the office and warehouse space onRussell Road to secure the E-T-T, Inc. Guaranty increasing the amount of thesecured obligations thereunder to reflect the increase of the RevolvingCommitment to $175,000,000 and to secure the Term Loans in an amount which isnot less than $100,000,000;

 

(7)                                  amendments to the fee and leasehold Deedsof Trust executed by E-T-T Enterprises, L.L.C. in respect of its interest theLakeside, Pahrump casino property and its interest in the Russell Road office and warehouse space increasingthe amount of the secured obligations thereunder to reflect the increase of theRevolving Commitment to $175,000,000 and to secure the Term Loans in an amountwhich is not less than $100,000,000

 

(8)                                  an amendment to the leasehold Deed ofTrust executed by Borrower in respect of its interest in the “training facility”adjacent to the Russell Road office and warehouse space to secure theobligations under this Agreement increasing the amount of the securedobligations thereunder to reflect the increase of the Revolving Commitment to$175,000,000 and to secure the Term Loans in an amount which is not less than$100,000,000;

 

(9)                                  favorableopinions of Gibson, Dunn & Crutcher, LLP and Kummer Kaempfer Bonner &Renshaw, counsel to the Loan Parties, addressed to the Administrative Agent andeach Lender, as to such matters concerning the Loan Parties and the LoanDocuments as the Administrative Agent or the Requisite Lenders may reasonablyrequest;

 

(10)                            an executedcertificate of each Loan Party dated as of the Term Effective Date  signed by a Responsible Officer of such LoanParty (A) certifying and attaching the resolutions adopted by such LoanParty approving or consenting to the increase in the Commitments, and(B) in the case of the Borrower, certifying that, before and after givingeffect to such increase, (1) the representations and warranties containedin Article V of the Credit Agreement and the other Loan Documents are trueand correct on and as of the Term Effective Date, except to the extent thatsuch representations and warranties specifically refer to an earlier date, inwhich case they are true and correct as of such earlier date, and except thatthe representations and warranties contained in subsections (a) and (b) ofSection 5.05 of the Credit Agreement shall be deemed to refer to the mostrecent statements furnished pursuant to clauses (a) and (b), respectively, ofSection 6.01 of the Credit Agreement, and (2) no Default exists or wouldresult from the increase to the Commitments;

 

(11)                            an executedcertificate of a Responsible Official of Borrower stating that (a) therepresentation and warranties contained in Section 11 hereof are true

 

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and correct as of the date hereof, and (b) the GraceAsset Purchase, has been, or will be substantially concurrently herewith,consummated in accordance with (and without any waiver of any term or provisionor closing condition of) the Grace Purchase Agreements and in materialcompliance with all applicable Laws, and that all approvals of GovernmentalAgencies required for the consummation of such transactions have been obtained,provided that in the event that Borrower elects not to concurrentlyconsummate the purchase of the Grace Assets located the State of Missouri(including any intangible assets associated with the businesses located inMissouri), such assets may be excluded from its certification;

 

(b)                                 suchendorsements to its existing title insurance policies as the AdministrativeAgent may reasonably request confirming the continuing priority of the lien ofthe existing fee and leasehold Deeds of Trust;

 

(c)                                  those feesdescribed in the Fee Letter which are due and payable as of the date hereof;

 

(d)                                 evidence thatall insurance required to be maintained pursuant to the Loan Documents has beenobtained and is in effect with respect to the assets which are the subject ofthe Grace Asset Purchase; and

 

(e)                                  such otherassurances, certificates, documents, consents or opinions as the AdministrativeAgent or the Requisite Lenders reasonably may require.

 

16.                                 Beneficiariesof this Agreement.  Each of theJoining Lenders and Increasing Lenders hereby acknowledges and agrees that theagreements set forth herein are for the express benefit of Borrower,Administrative Agent and the other Lenders and their respective successors andpermitted assigns.

 

17.                                 No Conflicts.  To the extent of any conflict orinconsistency between this Agreement and the Credit Agreement with regards tothe Term Loans, the terms of this Agreement shall prevail.

 

18.                                 Governing Law.  This Agreement and the transactionscontemplated hereunder shall be governed by and construed and enforced inaccordance with the local Laws of the State of Nevada.

 

19.                                 Execution ofAgreement.  ThisAgreement may be executed in any number of counterparts (including byfacsimile) and by different parties on separate counterparts, each of whichwhen so executed and delivered shall be deemed an original and all of whichwhen taken together shall constitute but one and the same instrument.

 

*[Signature page follows]*

 

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IN WITNESS WHEREOF, each ofthe undersigned has executed this Agreement as of the date first above written.

 

 
|   | AMERICAN EXPRESS  CERTIFICATE COMPANY |
|--------|---------------------------------------|
|   | By:                                   | American Express Asset  Management Group Inc. |
|   |                                  | As Collateral Manager |
|   |                                  |   |   |
|   | By:                                   | /s/ Steven B. Staver |   |
|   |                                  | Name: | Steven B. Staver |   |
|   |                                  | Title: | Managing Director |   |
|   |                                  |   |   |   |
|   |                                  |   |   |
|   | IDS LIFE INSURANCE COMPANY            |
|   | By:                                   | American Express Asset  Management Group Inc. |
|   |                                  | As Collateral Manager |   |
|   |                                  |   |   |
|   | By:                                   | /s/ Steven B. Staver |   |
|   |                                  | Name: | Steven B. Staver |   |
|   |                                  | Title: | Managing Director |   |
|   |                                  |   |   |   |
|   |                                  |   |   |
|   | CENTURION CDO 8, LIMITED              |
|   | By:                                   | American Express Asset  Management Group, Inc. |
|   |                                  | As Collateral Manager |   |
|   |                                  |   |   |
|   | By:                                   | /s/ Steven B. Staver |   |
|   |                                  | Name: | Steven B. Staver |   |
|   |                                  | Title: | Managing Director |   |
|        |                                       |  |  |  |  |  |

 

 

 

 

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|   | BLACK DIAMOND CLO 2005-1  LTD. |
|--------|--------------------------------|
|   |                           |   |
|   | By:                            | /s/ Wendy Ebanks |   |
|   |                           | Name: | Wendy Ebanks |   |
|   |                           | Title: | Director |   |
|        |                                |  |  |  |  |

 

 

 

 

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|   | CARLYLE HIGH YIELD PARTNERS  II, LTD.  |
|--------|----------------------------------------|
|   |                                   |   |
|   | By:                                    | /s/ Linda Pace |   |
|   |                                   | Name: | Linda Pace |   |
|   |                                   | Title: | Managing Director |   |
|   |                                   |   |   |   |
|   |                                   |   |   |   |
|   | CARLYLE HIGH YIELD  PARTNERS III, LTD. |
|   |                                   |   |
|   | By:                                    | /s/ Linda Pace |   |
|   |                                   | Name: | Linda Pace |   |
|   |                                   | Title: | Managing Director |   |
|   |                                   |   |   |
|   |                                   |   |   |   |
|   | CARLYLE HIGH YIELD PARTNERS  VI, LTD.  |
|   |                                   |   |
|   | By:                                    | /s/ Linda Pace |   |
|   |                                   | Name: | Linda Pace |   |
|   |                                   | Title: | Managing Director |   |
|   |                                   |   |   |
|   |                                   |   |   |   |
|   | CARLYLE LOAN INVESTMENT  LTD           |
|   |                                   |   |
|   | By:                                    | /s/ Linda Pace |   |
|   |                                   | Name: | Linda Pace |   |
|   |                                   | Title: | Managing Director |   |
|        |                                        |  |  |  |  |

 

 

 

 

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|   | SENIOR DEBT PORTFOLIO                       |
|--------|---------------------------------------------|
|   |                                        |
|   | By:                                         | Boston Management and Research, |
|   |                                        | as Investment Advisor |
|   |                                        |   |   |
|   | By:                                         | /s/ Michael B. Botthof |   |
|   |                                        | Name: | Michael B. Botthof |   |
|   |                                        | Title: | Vice President |   |
|   |                                        |   |   |   |
|   |                                        |   |   |
|   | EATON VANCE  INSTITUTIONAL SENIOR LOAN FUND |
|   |                                        |
|   | By:                                         | Eaton Vance Management, |
|   |                                        | as Investment Advisor |
|   |                                        |   |   |
|   | By:                                         | /s/ Michael B. Botthof |   |
|   |                                        | Name: | Michael B. Botthof |   |
|   |                                        | Title: | Vice President |   |
|   |                                        |   |   |   |
|   |                                        |   |   |
|   | EATON VANCE  CDO III, LTD.                  |
|   |                                        |
|   | By:                                         | Eaton Vance Management, |
|   |                                        | as Investment Advisor |
|   |                                        |   |   |
|   | By:                                         | /s/ Michael B. Botthof |   |
|   |                                        | Name: | Michael B. Botthof |   |
|   |                                        | Title: | Vice President |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   | COSTANTINUS  EATON VANCE CDO V, LTD.        |
|   |                                        |
|   | By:                                         | Eaton Vance Management, |
|   |                                        | as Investment Advisor |
|   |                                        |   |   |
|   | By:                                         | /s/ Michael B. Botthof |   |
|   |                                        | Name: | Michael B. Botthof |   |
|   |                                        | Title: | Vice President |   |
|   |                                        |   |   |   |
|   |                                        |   |   |
|   | EATON VANCE  CDO VI, LTD.                   |
|   |                                        |
|   | By:                                         | Eaton Vance Management, |
|   |                                        | as Investment Advisor |
|   |                                        |   |   |
|   | By:                                         | /s/ Michael B. Botthof |   |
|   |                                        | Name: | Michael B. Botthof |   |
|   |                                        | Title: | Vice President |   |
|        |                                             |  |  |  |  |  |

 

 

 

 

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|   | GRAYSON & CO                                                     |
|--------|----------------------------------------------------------------------|
|   |                                                                 |
|   | By:                                                                  | Boston Management and Research, |
|   |                                                                 | as Investment Advisor |
|   |                                                                 |   |   |
|   | By:                                                                  | /s/ Michael B. Botthof |   |
|   |                                                                 | Name: | Michael B. Botthof |   |
|   |                                                                 | Title: | Vice President |   |
|   |                                                                 |   |   |   |
|   |                                                                 |   |   |
|   | THE NORINCHUKIN BANK, NEW YORK BRANCH,                               |
|   | through State Street Bank and Trust Company as Fiduciary  Custodian. |
|   |                                                                 |
|   | By:                                                                  | Eaton Vance Management, |
|   |                                                                 | Attorney-in-fact |
|   |                                                                 |   |   |
|   | By:                                                                  | /s/ Michael B. Botthof |   |
|   |                                                                 | Name: | Michael B. Botthof |   |
|   |                                                                 | Title: | Vice President |   |
|   |                                                                 |   |   |   |
|   |                                                                 |   |   |
|   | TOLLI & CO.                                                      |
|   |                                                                 |
|   | By:                                                                  | Eaton Vance Management, |
|   |                                                                 | as Investment Advisor |
|   |                                                                 |   |   |
|   | By:                                                                  | /s/ Michael B. Botthof |   |
|   |                                                                 | Name: | Michael B. Botthof |   |
|   |                                                                 | Title: | Vice President |   |
|        |                                                                      |  |  |  |  |  |

 

 

 

 

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|   | ELF FUNDING TRUST I              |
|--------|----------------------------------|
|   | By:                              | Highland Capital Management, L.P. |
|   |                             | as Collateral Manager |
|   |                             |   |   |
|   | By:                              | /s/ David W. Lancelot |   |
|   |                             | Name: | David W. Lancelot |   |
|   |                             | Title: | Chief Financial Officer |   |
|   |                             |   |   |   |
|   |                             |   |   |
|   | HIGHLAND OFFSHORE PARTNERS, L.P. |
|   | By:                              | Highland Capital Management, L.P. |
|   |                             | as General Partner |
|   |                             |   |   |
|   | By:                              | /s/ David W. Lancelot |   |
|   |                             | Name: | David W. Lancelot |   |
|   |                             | Title: | Chief Financial Officer |   |
|   |                             |   |   |   |
|   |                             |   |   |
|   | PIONEER FLOATING RATE TRUST,     |
|   | By:                              | Highland Capital Management, L.P., |
|   |                             | its Sub-Advisor |
|   |                             |   |   |
|   | By:                              | /s/ Todd Travers |   |
|   |                             | Name: | Todd Travers |   |
|   |                             | Title: | Senior Portfolio Manager |   |
|   |                             |   | Highland  Capital Management, L.P. |
|   |                             |   |   |
|   |                             |   |   |
|   | LOAN STAR STATE TRUST            |
|   | By:                              | Highland Capital Management, L.P. |
|   |                             | Its Investment Manager, |
|   |                             |   |   |
|   | By:                              | Strand Advisors, Inc. |
|   |                             | Its General Partner |
|   |                             |   |   |
|   | By:                              | By: | /s/ David W. Lancelot |   |
|   |                             | Name: | David W. Lancelot |   |
|   |                             | Title: | Chief Financial Officer |   |
|        |                                  |  |  |  |  |  |

 

 

 

 

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|   | ING PRIME RATE TRUST   |
|--------|------------------------|
|   | By:                    | ING Investment Management Co. |
|   |                   | as its investment manager |
|   |                   |   |   |
|   | By:                    | /s/ William F. Nutting, Jr. |   |
|   |                   | Name: | William F. Nutting, Jr. |   |
|   |                   | Title: | Vice President |   |
|   |                   |
|   |                   |
|   | ING SENIOR INCOME FUND |
|   | By:                    | ING Investment Management Co. |
|   |                   | as its investment manager |
|   |                   |   |   |
|   | By:                    | /s/ William F. Nutting, Jr. |   |
|   |                   | Name: | William F. Nutting, Jr. |   |
|   |                   | Title: | Vice President |   |
|        |                        |  |  |  |  |

 

 

 

 

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|   | FLOATING RATE INCOME STRATEGIES FUND II, INC.  (FRB) |
|--------|------------------------------------------------------|
|   |                                                 |   |   |
|   | By:                                                  | /s/ Jaimin Patel |   |
|   |                                                 | Name: | Jaimin Patel |   |
|   |                                                 | Title: | Authorized Signatory |   |
|        |                                                      |  |  |  |  |

 

 

 

 

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|   | NEVADA STATE BANK |
|--------|-------------------|
|   |              |   |   |
|   | By:               | /s/ Steven A. Strunk |   |
|   |              | Name: | Steven A. Strunk |   |
|   |              | Title: | Vice President |   |
|        |                   |  |  |  |  |

 

 

 

 

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|   | SOUTHPORT CLO, LIMITED |
|--------|------------------------|
|   | By:                    | Pacific Investment Management Company LLC, |
|   |                   | as its Investment Advisor |
|   |                   |   |   |
|   | By:                    | /s/ Ralph Lopez |   |
|   |                   | Name: |   |   |
|   |                   | Title: |   |   |
|        |                        |  |  |  |  |

 

 

 

 

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|   | LOAN FUNDING XI LLC        |
|--------|----------------------------|
|   | By:                        | Sankaty Advisors, LLC |
|   |                       | as Collateral Manager |
|   |                       |   |   |
|   | By:                        | /s/ Jeffrey Hawkins |   |
|   |                       | Name: | Jeffrey Hawkins |   |
|   |                       | Title: | Senior Vice President |   |
|   |                       |
|   |                       |
|   | HARBOUR TOWN FUNDING LLC   |
|   | By:                        | /s/ Diana M. Himes |   |
|   |                       | Name: | Diana M. Himes |   |
|   |                       | Title: | Assistant Vice President |   |
|   |                       |
|   |                       |
|   | RACE POINT CLO, LIMITED    |
|   | By:                        | Sankaty Advisors, LLC |
|   |                       | as Collateral Manager |
|   |                       |   |   |
|   | By:                        | /s/ Jeffrey Hawkins |   |
|   |                       | Name: | Jeffrey Hawkins |   |
|   |                       | Title: | Senior Vice President |   |
|   |                       |
|   |                       |
|   | RACE POINT II CLO, LIMITED |
|   | By:                        | Sankaty Advisors, LLC |
|   |                       | as Collateral Manager |
|   |                       |   |   |
|   | By:                        | /s/ Jeffrey Hawkins |   |
|   |                       | Name: | Jeffrey Hawkins |   |
|   |                       | Title: | Senior Vice President |   |
|        |                            |  |  |  |  |

 

 

 

 

----

 
|   | ULT CBNA LOAN FUNDING LLC,          |
|--------|-------------------------------------|
|   | for itself or as agent for ULT CFPI |
|   | LOAN FUNDING LLC                    |
|   |                                |
|   | By:                                 | Stanfield Capital Partners LLC |
|   |                                | as its Interim Asset Manager |
|   |                                |   |   |
|   | By:                                 | /s/ Suzanne Smith |   |
|   |                                | Name: | Suzanne Smith |   |
|   |                                | Title: | As Attorney-In-Fact |   |
|        |                                     |  |  |  |  |

 

 

 

 

----

 
|   | VAN KAMPEN SENIOR INCOME TRUST |
|--------|--------------------------------|
|   | By:                            | Van Kampen Investment Advisory Corp. |   |
|   |                           |   |   |
|   |                           |   |   |
|   | By:                            | /s/ Frank Sherrod |   |
|   |                           | Name: | Frank Sherrod |   |
|   |                           | Title: | Vice President |   |
|   |                           |
|   |                           |
|   | VAN KAMPEN SENIOR LOAN FUND    |
|   | By:                            | Van Kampen Investment Advisory Corp. |   |
|   |                           |   |   |
|   |                           |   |   |
|   | By:                            | /s/ Frank Sherrod |   |
|   |                           | Name: |  Frank Sherrod |   |
|   |                           | Title: | Vice President |   |
|        |                                |  |  |  |  |

 

 

 

 

----

 
|   | BANK OF AMERICA, N.A., |
|--------|------------------------|
|   |                   |   |   |
|   | By:                    | /s/ Peter J. Vitale |   |
|   |                   | Name: | Peter J. Vitale |   |
|   |                   | Title: | SVP |   |
|        |                        |  |  |  |  |

 

 

 

 

----

 
|   | LEHMAN COMMERCIAL PAPER INC. |
|--------|------------------------------|
|   |                         |   |   |
|   | By:                          | /s/ V. Paul Arzouian |   |
|   |                         | Name: | V. Paul Arzouian |   |
|   |                         | Title: | Authorized Signatory |   |
|        |                              |  |  |  |  |

 

 

 

 

----

 
|   | BANK OF SCOTLAND |
|--------|------------------|
|   |             |   |   |
|   | By:              | /s/ Amena Nabi |   |
|   |             | Name: | Amena Nabi |   |
|   |             | Title: | Assistant Vice President |   |
|        |                  |  |  |  |  |

 

 

 

 

----

 
|   | WELLS FARGO BANK N.A. |
|--------|-----------------------|
|   |                  |   |   |
|   | By:                   | /s/ Donald Schubert |   |
|   |                  | Name: | Donald Schubert |   |
|   |                  | Title: | VP |   |
|        |                       |  |  |  |  |

 

 

 

 

----

 
|   | COMERICA WEST INCORPORATED |
|--------|----------------------------|
|   |                       |   |   |
|   | By:                        | /s/ Kevin T. Urban |   |
|   |                       | Kevin T. Urban |   |
|   |                       | Corporate Banking Officer |   |

 

 

 

 

----

 
| ACKNOWLEDGED AND AGREED TO: |                                  |
|-----------------------------|---------------------------------------|
|                        |                                  |
| BANK OF AMERICA, N.A.,      |                                  |
| as Administrative Agent     |                                  |
|                        |                                  |
| By:                         | /s/ Chris M. Levine                   |   |   |
| Name:                       | Chris M. Levine                       |   |   |
| Title:                      | Assistant Vice President              |   |   |
|                        |                                  |
|                        |                                  |
| HERBST GAMING, INC.         |                                  |
|                        |                                  |
| By:                         | /s/ Edward Herbst                     |   |   |
| Name:                       | Edward Herbst                         |   |   |
| Title:                      | President and Chief Executive Officer |   |   |
|                             |                                       |  |  |  |  |  |

 

 

 

 

----

 

Schedule1

 

IncreasingLenders

 
| **Name of Increasing Lender** | ** ** | **Amount of Term Commitment** | ** ** |
|-------------------------------|------------|-------------------------------|------------|
| ** **                    | ** ** | ** **                    | ** ** |
| Nevada State Bank             |       | $                             | 4,000,000  |   |
|                          |       |                          |       |   |
| Bank of America, N.A.         |       | $                             | 35,000,000 |   |
|                          |       |                          |       |   |
| Lehman Commercial Paper Inc.  |       | $                             | 7,000,000  |   |
|                          |       |                          |       |   |
| Wells Fargo Bank N.A.,        |       | $                             | 5,000,000  |   |
|                          |       |                          |       |   |
| Comerica West Incorporated,   |       | $                             | 3,000,000  |   |

 

JoiningLenders

 
| **Name of Joining Lender**                 | ** ** | **Amount of Term Commitment** | ** ** |
|--------------------------------------------|------------|-------------------------------|------------|
| ** **                                 | ** ** | ** **                    | ** ** |
| American Express Certificate Company       |       | $                             | 500,000    |   |
|                                       |       |                          |       |   |
| IDS Life Insurance Company                 |       | $                             | 500,000    |   |
|                                       |       |                          |       |   |
| Centurion CDO 8, Limited                   |       | $                             | 3,000,000  |   |
|                                       |       |                          |       |   |
| Black Diamond CLO 2005-1 Ltd.              |       | $                             | 4,000,000  |   |
|                                       |       |                          |       |   |
| Carlyle High Yield Partners II, Ltd.       |       | $                             | 1,250,000  |   |
|                                       |       |                          |       |   |
| Carlyle High Yield Partners III, Ltd.      |       | $                             | 1,000,000  |   |
|                                       |       |                          |       |   |
| Carlyle High Yield Partners VI, Ltd.       |       | $                             | 1,000,000  |   |
|                                       |       |                          |       |   |
| Carlyle Loan Investment Ltd                |       | $                             | 750,000    |   |
|                                       |       |                          |       |   |
| Senior Debt Portfolio                      |       | $                             | 1,365,000  |   |
|                                       |       |                          |       |   |
| Eaton Vance Institutional Senior Loan Fund |       | $                             | 400,000    |   |
|                                       |       |                          |       |   |
| Eaton Vance CDO III, Ltd.                  |       | $                             | 160,000    |   |
|                                       |       |                          |       |   |
| Costantinus Eaton Vance CDO V, Ltd.        |       | $                             | 205,000    |   |
|                                       |       |                          |       |   |
| Eaton Vance CDO VI, Ltd.                   |       | $                             | 205,000    |   |
|                                       |       |                          |       |   |
| Grayson & Co                           |       | $                             | 2,330,000  |   |
|                                       |       |                          |       |   |
| The Norinchukin Bank, New York Branch      |       | $                             | 205,000    |   |

 

----

 
| Tolli & Co.                                      |   | $      | 130,000   |   |
|------------------------------------------------------|--------|--------|-----------|--------|
|                                                 |   |   |      |   |
| ELF Funding Trust I                                  |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Highland Offshore Partners, L.P.                     |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Pioneer Floating Rate Trust                          |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Loan Star State Trust                                |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| ING Prime Rate Trust                                 |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| ING Senior Income Fund                               |   | $      | 3,000,000 |   |
|                                                 |   |   |      |   |
| Floating Rate Income Strategies Fund II,  Inc. (FRB) |   | $      | 2,000,000 |   |
|                                                 |   |   |      |   |
| Southport CLO, Limited                               |   | $      | 4,000,000 |   |
|                                                 |   |   |      |   |
| Loan Funding XI LLC                                  |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Harbour Town Funding LLC                             |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Race Point CLO, Limited                              |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| Race Point II CLO, Limited                           |   | $      | 1,000,000 |   |
|                                                 |   |   |      |   |
| ULT CBNA Loan Funding LLC                            |   | $      | 2,000,000 |   |
|                                                 |   |   |      |   |
| Van Kampen Senior Income Trust                       |   | $      | 2,400,000 |   |
|                                                 |   |   |      |   |
| Van Kampen Senior Loan Fund                          |   | $      | 1,600,000 |   |
|                                                 |   |   |      |   |
| Bank of Scotland                                     |   | $      | 5,000,000 |   |

 

----

 

Schedule 2

 

(See attached)

 

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