Exhibit 10.1
AMENDMENT TO AMENDMENT NO. 4 AND
FORBEARANCE AND STANDSTILL AGREEMENT
AMENDMENT TO AMENDMENT NO. 4 AND
FORBEARANCE AND STANDSTILL AGREEMENT dated as of September 30,
2008 (this “ Agreement ”) between HERBST GAMING,
INC. (the “ Borrower ”), the Subsidiaries of the
Borrower executing a counterpart hereof (the “
Grantors ” and, together with the Borrower, the
“ Loan Parties ”) and WILMINGTON TRUST COMPANY,
as administrative agent for the lenders parties to the Credit
Agreement referenced below (in such capacity, together with its
successors in such capacity, the “ Administrative
Agent ”).
The Borrower, the Grantors, the
Lenders parties thereto and the Administrative Agent are parties to
(i) a Credit Agreement dated as of January 3, 2007 (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, the
Forbearance Agreement (as defined below) and as further amended,
supplemented and otherwise modified from time to time, the “
Credit Agreement ”) and (ii) an Amendment
No. 4 and Forbearance and Standstill Agreement dated as of
May 15, 2008 (the “ Forbearance Agreement
”).
The Borrower, the Grantors and the
Administrative Agent (pursuant to authority granted by and having
obtained all necessary consents of the Requisite Lenders parties to
the Credit Agreement and the Forbearance Agreement) wish now to
amend the Forbearance Agreement in certain respects, and,
accordingly, the parties hereto hereby agree as follows:
Section 1.
Definitions . Except as otherwise defined in this
Agreement, terms defined in the Credit Agreement and the
Forbearance Agreement are used herein as defined
therein.
Section 2. Amendments
to Forbearance Agreement . Subject to the satisfaction of
the conditions precedent specified in Section 4 hereof, but
effective as of the date hereof, the Forbearance Agreement shall be
amended as follows:
(a)
Add Certain Defaults to Loan Parties’ Acknowledgments
. The first two sentences of Section 1(a) of the
Forbearance Agreement shall be amended to read in their entirety as
follows:
“Each of the Financial
Statement Default, the Financial Covenant Default, the SEC
Reporting Default and the Senior Subordinated Notes Default (each
as defined in Schedule A hereto) constitutes an Event of Default
that has occurred, remains uncured, has not been waived and is
continuing as of the date of the Amendment to this Agreement dated
as of September 30, 2008 (the “Amendment”) and
cannot be cured. Except for the Financial Statement Default,
the Financial Covenant Default, the SEC Reporting Default and the
Senior Subordinated Notes Default, no other Defaults or Events of
Default have occurred and are continuing as of the date of the
Amendment.”
(b)
Extend Forbearance Period . Section 2 of the
Forbearance Agreement shall be amended by (i) deleting the
words “Subject to the satisfaction of the conditions
precedent specified in Section 5 below, but” in the
first two lines thereof and capitalizing the initial reference to
the word “effective” contained therein and
(ii) replacing the date “September 30, 2008”
contained in subclause (a) thereof with
“November 5, 2008”.
(c)
Extend Period for Borrowing Eurodollar Rate Loans .
Section 4(a)(iii) of the Forbearance Agreement shall be
amended by replacing the date “September 30, 2008”
contained therein with “November 5,
2008”.
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