EXHIBIT 10.1


 


EXECUTION COPY


 


May 28, 2009


 


To the Consenting Lenders under the Lock-Up
Agreement referred to below:


 


Reference
is made to the letter agreement, dated as of March 9, 2009 (as amended,
supplemented or otherwise modified and in effect as of the date hereof, the “Lock-Up
Agreement”), among Herbst Gaming, Inc. (the “Company”), the
Guarantor Debtors (as defined therein) and the Consenting Parties (as defined
therein).  Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Lock-Up Agreement.


 


By
this instrument (this “Amendment and Waiver”), each of the Debtors and
the Consenting Lenders, intending to be legally bound, hereby agrees as
follows:


 


1.                                       The termination
event described in Section 12(a)(ix) of the Lock-Up Agreement is
hereby waived.


 


2.                                       The consent of
the THI Parties as a condition to the effectiveness of this Amendment and
Waiver and to the continued binding effect of the Lock-Up Agreement with
respect to the Debtors and Consenting Lenders is hereby waived.


 


3.                                       A new
termination event is hereby added as Section 12(a)(xxiv) of the Lock-Up
Agreement as follows:


 


“(xxiv)  The Plan
and the Disclosure Statement, in each case in form and substance acceptable to
Required Consenting Lenders, shall not have been filed with the Bankruptcy
Court on or before June 15, 2009.”


 


provided  that the waiver of Required
Consenting Lenders, but not the Debtors, shall be required with respect to any
automatic termination that occurs pursuant to such new paragraph (xxiv).


 


4.                                       In light of the
termination of the Lock-Up Agreement with respect to the THI Parties, the
Restructuring, the Term Sheet, the Plan and the Plan Documents shall all be
modified to reflect treatment of all claims, rights and obligations of the THI
Parties, including the treatment of the Related Party Agreements, in a manner
acceptable to the Debtors and Required Consenting Lenders.


 

















 


5.                                       Any Consenting
Lender that does not find acceptable the tax or capital structure proposed in
the Plan and Disclosure Statement filed with the Bankruptcy Court can elect to
terminate the Lock-Up Agreement solely with respect to such Consenting Lender
upon notice to the Company within 2 Business Days of such filing; provided that if any such election
shall result in all other remaining Consenting Lenders holding less than a
majority in dollar amount of all outstanding Claims under the Senior Credit
Facility, then the Lock-Up Agreement shall automatically terminate
notwithstanding any waiver by the Debtors.


 


References in the Lock-Up Agreement (including
references to the Lock-Up Agreement as amended hereby) to “this Agreement” (and
indirect references such as “hereunder”, “hereby”, “herein” and “hereof” or
words of like import) shall be deemed to be references to the Lock-Up Agreement
as amended hereby.  This Amendment and
Waiver shall be limited as written and nothing herein shall be deemed to
constitute a waiver of any other term, provision or condition of the Lock-Up
Agreement in any other instance than as set forth herein or prejudice any right
or remedy that any Consenting Lender may have or may in the future have under
the Lock-Up Agreement.  Except as herein
provided, the Lock-Up Agreement shall remain unchanged and in full force and
effect with respect to the Debtors and the Consenting Lenders and is hereby in
all respects ratified and confirmed. 
This Amendment and Waiver may be executed by the Debtors in any number
of counterparts and by different Debtors in separate counterparts and by
facsimile, with the same effect as if all Debtors had signed the same document,
and may be ratified by the Consenting Lenders through electronic
transmission.  This Amendment and Waiver
shall be governed by and construed in accordance with the laws of the State of
New York.


 

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  HERBST GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name: 

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
  GUARANTOR DEBTORS:

  
	
   

  	
   

  
	
   

  	
  FLAMINGO PARADISE GAMING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  MANAGING MEMBER

  
	
   

  	
   

  
	
   

  	
  MARKET GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  CARDIVAN COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  CORRAL COIN, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  CORRAL COUNTRY COIN, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  



 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  MANAGING MEMBER

  
	
   

  	
   

  
	
   

  	
  E-T-T, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  HGI — ST. JO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  HGI — LAKESIDE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  HGI — MARK TWAIN, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  THE SANDS REGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  



 

















 


	
   

  	
  ZANTE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  LAST
  CHANCE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  CALIFORNIA
  PROSPECTORS, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  MANAGING
  MEMBER

  
	
   

  	
   

  
	
   

  	
  PLANTATION
  INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  DAYTON
  GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  SECRETARY/TREASURER

  
	
   

  	
   

  
	
   

  	
  THE
  PRIMADONNA COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TROY D. HERBST

  
	
   

  	
   

  	
  Name:

  	
  TROY
  D. HERBST

  
	
   

  	
   

  	
  Title:

  	
  MANAGING
  MEMBER

  



 

















 


Accepted and agreed to by the Consenting
Lenders named below:


 


[electronic
transmissions, constituting the consent of Required Consenting Lenders, on file
with the Senior Credit Facility Agent]