EXHIBIT 10.43


 


AMENDED
AND RESTATED SHARED SERVICES AGREEMENT


 


THIS
AMENDED AND RESTATED SHARED SERVICES AGREEMENT (the “Agreement”) is dated as of January 16,
2009 by and among HERBST GAMING, INC.,
a Nevada corporation (“HG”), whose address is 3440 W. Russell Road, Las
Vegas, Nevada, 8911, and, collectively, BERRY-HINCKLEY INDUSTRIES,
a Nevada corporation, whose address is 5195 Las Vegas Blvd. South, Las Vegas,
Nevada 89119 and TERRIBLE HERBST, INC., a Nevada
corporation (collectively, “TH”), whose address is 5195 Las Vegas Blvd.
South, Las Vegas, Nevada 89119.  HG and
TH are sometimes individually referred to as a “Party” and collectively
as the “Parties”.


 


WHEREAS, HG and TH have
entered into that certain Shared Services Agreement dated as of January 9,
2008 (the “2008 Agreement”) with respect to the provision of certain
services to TH by HG;


 


WHEREAS, HG and TH wish
to amend and restate the 2008 Agreement to provide for the provision of
services by TH to HG, as well as the provision of services by HG to TH,
effective as of January 1, 2009.


 


WHEREAS, subject to the
terms and conditions set forth herein, TH desires to reimburse HG for certain
employees of HG who are listed on the attached Exhibit A (the “HG
Employees”) that perform services (the “HG Services”) for TH as
requested from time to time and as set forth on Exhibit A;


 


WHEREAS, subject to the
terms and conditions set forth herein, HG desires that the HG Employees perform
the HG Services for TH and charge TH for the costs associated with the HG Services;


 


WHEREAS, subject to the
terms and conditions set forth herein, HG desires to reimburse TH for certain
employees of TH who are listed on the attached Exhibit A (the “TH
Employees” and, with the HG Employees, the “Employees”) that perform
services (the “TH Services” and, with the HG Services, the “Services”)
for HG as requested from time to time and as set forth on Exhibit A ;


 


WHEREAS, subject to the
terms and conditions set forth herein, TH desires that the TH Employees perform
the TH Services for HG and charge HG for the costs associated with the TH
Services; and


 


NOW, THEREFORE, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, HG
and TH agree as follows:


 


1.                                       Specifications of Work.


 


1.1                                 General Services.


 


(a)  The Parties
agree that the general scope and results of the HG Services to be performed by
the HG Employees shall be determined by TH and consist primarily of the
day-to-day functions of TH.


 


(b)  The Parties
agree that the general scope and results of the TH Services to be performed by
the TH Employees shall be determined by HG and consist primarily of (i) maintaining
the price books for certain HG service station locations; and (ii) providing
management oversight of the service station operations at the Primm sites.


 


1.2           Substitution of
Individuals.  In the event
that an HG Employee or TH Employee resigns as an employee of HG or TH, as
applicable, or has been terminated by HG or TH as an employee, as applicable (a
“Termination Event”), the Party whose employee has resigned or been
terminated (the “Affected Employer”) shall provide notice of such
Termination Event to the other Party (the “Affected Party”).  If an HG Employee or a TH Employee is subject
to a Termination Event: (i) the Affected Employer shall use its reasonable
efforts to replace or substitute another individual as an employee but shall
not have any liability to the Affected Party for its failure to do so; (ii) the
Affected Employer shall provide written notice to the Affected Party of such
replacement or substitute employee; and (iii) the Parties shall consent in
writing to the amendment of the attached Exhibit A, including the
salary, the benefit cost and the allocation percentage (the “Allocation
Percentage”) attributable to such replacement or substituted Employee,
which consent shall not be unreasonably withheld


 


2.                                       Term. 
Subject to the terms and conditions set forth herein, this Agreement
shall commence on the Effective Date and continue in full force and effect for
one year (the “Term”), unless terminated as provided herein, and the
Term shall, unless terminated by mutual written agreement by the Parties, be
automatically extended for an additional one year period.


 


 

















 


3.                                       Fees.


 


3.1                                 Consideration.


 


(a)  In
consideration of furnishing the HG Services, fees shall be allocated and
payable to HG (the “HG Fee”) in an amount equal to the Allocation
Percentage multiplied by the HG Employees’ salaries plus the costs of the
benefits, including, without limitation, the costs of group health insurance
and disability insurance (the “HG Employee Benefits”), as set forth in
the attached Exhibit A.  The
Allocation Percentage is based on the percentage of employees employed by TH
and HG, respectively, as set forth in Exhibit A.


 


(b)  In
consideration of furnishing the TH Services, fees shall be allocated and
payable to TH (the “TH Fees” and, with the HG Fee, the “Fee”)  in an amount equal to the Allocation
Percentage multiplied by the TH Employees’ salaries plus the costs of the
benefits, including, without limitation, the costs of group health insurance
and disability insurance (the “TH Employee Benefits” and together with
the HG Employee Benefits, the “Benefits”), as set forth in the attached Exhibit A.


 


(c)  By January 15
of each successive year, the Parties shall submit to each other the following: (i) a
list of Employees currently employed, (ii) the total number of employees
employed by each entity, respectively, (iii) the percentage of employees
employed by each entity respectively and (iv) the total amount of the
Benefits for the Employees for the preceding year; The TH and HG Fees for the
following year shall then be calculated based on (i) — (iv), and Exhibit A
shall be amended accordingly.


 


3.2                                 Payment. 
The HG Fees, offset by the TH Fees, shall be paid by TH to HG in arrears
monthly no later than the tenth day of each month for the immediately preceding
calendar month, and if not paid by the end of the immediately preceding
calendar month shall be deemed a default hereunder.  All Fees not paid on or prior to such due
date shall be subject to a monthly late charge of eight percent (8%) of the
unpaid balance.


 


4.                                       Ownership Rights. 
All right, title and interest in and to all products, services and
materials provided to TH by the HG Employees under this Agreement shall be and
remain the property of HG, and all right, title and interest in and to all
products, services and materials provided to HG by the TH Employees under this
Agreement shall be and remain the property of TH.  The Parties shall have no right, title or
interest in or to any products, services or materials that are produced in
connection with the Services performed by the employees of the other Party
pursuant to the terms of this Agreement. 
With specific regard to Sean Higgins, that fact that he is a shared
employee shall not impair, limit or waive the attorney-client relationship
existing between him and the Parties, and the privileges and confidentiality
related thereto.  Notwithstanding the
above, HG and TH shall retain all rights, title and interest to any and all
intellectual property that they utilize as part of the provision of Services to
the other Party.


 


5.                                       Termination.


 


5.1                                 Default. 
If either Party (the “Defaulting Party”) materially defaults in
the performance of its obligations under this Agreement, and if such default is
not cured within 15 days after written notice is given to the Defaulting Party
specifying the default, then the other Party may, by giving written notice to
the Defaulting Party, terminate this Agreement as of the date specified in the
notice of termination.


 


5.2                                 Payments. 
Upon termination of this Agreement pursuant to Section 5.1,
the Parties’ sole remaining obligations, except as provided for in Section 11.8,
shall be to pay the Fees and late charges relating to the Services prior to the
date of such termination.


 


5.3                                 Assistance. 
Upon any termination of this Agreement, each Party will assist and
comply with the other Party’s reasonable directions to cause the orderly
transition and migration of the HG Services to TH and the TH Services to HG, as
applicable, or to a third party contractor to whom HG or TH chooses to transfer
the Services.


 


6.                                       Liability.


 


6.1                                 Indemnification.


 


(a)    HG agrees to indemnify TH and its parent,
subsidiaries, affiliated companies, and their respective directors, officers,
agents and employees (collectively, the “TH Indemnified Parties”) for,
and to hold each TH Indemnified Party harmless from and against, any and all
liabilities arising or resulting from the actions of the TH Employees while
providing Services to, or performing Services on behalf of, HG (the “TH
Claims”), except to the extent any such TH Claims are caused by the gross
negligence or willful misconduct of TH or a TH Employee.


 


(b)  TH agrees to
indemnify HG and its parent, subsidiaries, affiliated companies, and their
respective directors, officers, agents and employees (each, an “HG
Indemnified Party” and, together with the TH Indemnified Parties, the 


 


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“Indemnified Parties”)
for, and to hold each HG Indemnified Party harmless from and against, any and
all liabilities arising or resulting from the actions of the HG Employees while
providing Services to, or performing Services on behalf of, TH (the  “HG Claims” and, together with the TH
Claims, the “Claims”), except to the extent any such HG Claims are
caused by the gross negligence or willful misconduct of HG or an HG Employee.


 


6.2                                 Notice and Procedures. 
An Indemnified Party seeking indemnification pursuant to Section 6.1
will give prompt written notice in reasonable detail (the “Notice of Claim”)
to HG or TH, as the case may be, stating the basis of any Claim for which
indemnification is being sought hereunder within 30 days after the Indemnified
Party’s knowledge thereof; provided, however,
that an Indemnified Party’s failure to provide any such Notice of Claim to TH
or HG, as the case may be, will not relieve HG or TH, as the case may be, of or
from any of its obligations hereunder, except to the extent that HG or TH
suffers prejudice as a result of such failure. 
If the facts giving rise to such indemnification involve an actual or
threatened claim by or against a third party:


 


(a)  The Parties
will cooperate in the prosecution or defense of such claim and will furnish
such records, information and testimony and attend to such proceedings as may
be reasonably requested in connection therewith;


 


(b)  An Indemnified
Party will make no settlement of any Claim that would give rise to liability on
the part of HG without HG’s prior written consent, which will not be
unreasonably withheld or delayed.  HG
will not be liable for the amount of any settlement affected without its prior
written consent.


 


(c)  An Indemnified
Party will make no settlement of any Claim that would give rise to liability on
the part of TH without TH’s prior written consent, which will not be
unreasonably withheld or delayed.  TH
will not be liable for the amount of any settlement affected without its prior
written consent.


 


7.                                       Acknowledgement. 
During the Term, the Parties shall pay the Fees and late charges without
any deductions made whatsoever for state or federal taxes of any kind.


 


8.                                       Compliance.


 


(a)  HG agrees to: (i) pay
all applicable federal and/or state taxes which arise or relate the employment
of any HG Employee under this Agreement; (ii) pay all premiums and
contributions with respect to the HG Employee Benefits; and (iii) comply
with employer obligations with respect to HG’s employees, including the HG
Employees, under applicable federal, state and local laws and regulations.


 


(b)  TH agrees to: (i) pay
all applicable federal and/or state taxes which arise or relate the employment
of any TH Employee under this Agreement; (ii) pay all premiums and
contributions with respect to the TH Employee Benefits; and (iii) comply
with employer obligations with respect to TH’s employees, including the TH
Employees, under applicable federal, state and local laws and regulations.


 


9.                                       Independent Contractor Status. 
The Parties agree and acknowledge that HG and HG Employees providing HG
Services to TH are independent contractors to TH, and TH and TH Employees
providing TH Services to HG are independent contractors to HG.  Nothing contained in this Agreement shall be
deemed to constitute either Party as an agent, representative, partner, joint
venturer or employee of the other Party for any purpose.


 


10.                                 Separate Expenses.  All
items not paid by the Parties pursuant to this Agreement shall be paid for separately
by each of the Parties, including, without limitation, separate printing,
postage, stationary and services rendered by third parties.


 


11.                                 Miscellaneous.


 


11.1                           Notices. 
All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed given (i) two business days after being sent by a nationally
recognized overnight delivery service or (ii) upon receipt of electronic
or other confirmation of transmission if sent via facsimile, in each case at
the addresses or facsimile numbers (or at such other address or facsimile
number for a Party as shall be specified by like notice) set forth below:


 


	
  If to HG:

  	
  Herbst
  Gaming, Inc.

  
	
   

  	
  3440 W. Russell Road

  
	
   

  	
  Las Vegas, Nevada 89118

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Fax: (702) 889-7691

  



 


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  If to TH:

  	
  Terrible Herbst, Inc.

  
	
   

  	
  5195 Las Vegas
  Boulevard South

  
	
   

  	
  Las Vegas, Nevada 89119

  
	
   

  	
  Attention: Jerry Herbst

  
	
   

  	
  Fax: (702) 798-8079

  



 


11.2                           Entire Agreement. 
The provisions of this Agreement (including the attached exhibit) shall
be construed to be one instrument that reflects the Parties’ entire agreement
as to the matters expressed herein and supersedes all other proposals,
agreements, arrangements, understandings, representations and covenants, oral
or written, including the 2008 Agreement, and any such prior agreements are
hereby expressly terminated.


 


11.3                           Amendment. 
This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the Parties.


 


11.4                           Assignment/Change of Control. 
Neither Party may, without the prior written consent of the other Party,
assign or transfer this Agreement, in whole or in part, either voluntarily or
by operation of law, and any such assignment or transfer shall be null and
void.


 


11.5                           Governing
Law; Jurisdiction.  This
Agreement has been executed and delivered in, and shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of, the State of Nevada. 
Any litigation arising out of or related to this Agreement shall be
instituted and prosecuted only in the appropriate state or federal court
situated in Clark County, Nevada.  Each
Party hereto hereby submits to the exclusive jurisdiction and venue of such
courts for purposes of any such action and the enforcement of any judgment or
order arising therefrom.  Each Party
hereto hereby waives any right to a change of venue and any and all objections
to the jurisdiction of the state and federal courts located in Clark County,
Nevada.


 


11.6                           Waivers.  No delay or failure by any Party to exercise
or enforce at any time any right or provision of this Agreement shall be
considered a waiver thereof or of such party’s right thereafter to exercise or
enforce each and every right and provision of this Agreement.  To be valid, a waiver shall be in writing,
but need not be supported by consideration. 
No single waiver shall constitute a continuing or subsequent waiver.


 


11.7                           Attorneys’
Fees.  In the event of any action or
legal proceeding between or among the Parties to enforce, protect, interpret or
establish any of their rights or obligations under this Agreement or any action
or legal proceeding for damages for an alleged breach of any provision of this
Agreement, the prevailing party shall be entitled to recover from the other
party reasonable expenses, attorneys’ fees and costs.


 


11.8                           Survival
of Certain Provisions. 
Notwithstanding anything contained in this Agreement, the provisions of Sections
4, 5.2, 6 and 11 shall survive the expiration of the Term or the
termination of this Agreement.


 


11.9                           Interpretation.  The captions of the sections of this
Agreement are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement.  Any pronouns or references used herein shall
be deemed to include the masculine, feminine or neuter genders as
appropriate.  Any expression in the
singular or the plural shall, if appropriate in the context, include both the
singular and the plural.


 


11.10                     Partial
Invalidity.  Each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any provisions herein are, for any
reason, held to be invalid, illegal or unenforceable in any respect, such
provisions shall be ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder
of such provisions or any other provisions hereof, unless such a construction
would be unreasonable.


 


11.11                     Execution
in Counterparts; Facsimile Signatures.  This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but all
of which together shall be considered one and the same agreement.  Facsimile copies of the signature page hereof
shall be deemed originals and shall be binding for all purposes.


 


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IN WITNESS WHEREOF, HG
and TH have executed this Amended and Restated Shared Services Agreement to be
effective as of the date first above written.


 


	
   

  	
  Herbst
  Gaming, Inc., a Nevada corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Herbst

  
	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Terrible
  Herbst, Inc., a Nevada corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jerry E. Herbst

  
	
   

  	
  Its:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Berry-Hinckley
  Industries, a Nevada corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jerry E. Herbst

  
	
   

  	
  Its:

  	
  President

  



 


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