**Exhibit 10.43**

 

**PRIVILEGED AND**

**CONFIDENTIAL**

 

**SHAREDSERVICES AGREEMENT**

 

This Shared Services Agreement is made as of January 1,2008 (the *“Effective Date”)*betweenHerbst Gaming, Inc. (“HG”), a Nevada corporation and collectively,Berry-Hinckley Industries, a Nevada corporation and Terrible Herbst, Inc.(collectively, “TH”), a Nevada corporation. HG and TH are sometimesindividually referred to as a *“Part”*andcollectively as the *“Parties.”*

 

**PreliminaryStatements**

 

WHEREAS, subject to the terms and conditions setforth herein, TH desires to reimburse HG for certain employees of HG which arelisted on the attached Exhibit A (the *“Employees”)*and perform services for TH as requested fromtime to time by TH (the *“Services”);*and

 

WHEREAS, subject to the terms and conditions setforth herein, HG desires that such Employees perform such Services for TH andcharge TH for the costs associated with such Services.

 

**Agreement**

 

NOW THEREFORE, in consideration of the terms andconditions set forth below and other good and valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, the Parties agree asfollows:

 

1.               *Specifications**of**Work.*

 

1.1 *General Services.*The Parties agree thatthe general scope and results of the Services to be performed by the Employeesshall be determined by TH and consist primarily of the day-to-day functions ofTH.

 

1.2 *Substitutionof Individuals.*In the event that an Employee resigns as an employeeof HG or has been terminated by HG as an employee *(“Termination Event”),*HG shall provide notice of suchTermination Event to TH. If an Employee is subject to a Termination Event: (i) HGshall use its reasonable efforts to replace or substitute another individual asan Employee but shall not have any liability to TH for its failure to do so; (ii) HGshall provide written notice to TH of such replacement or substitute Employee;and (iii) the Parties shall consent in writing to the amendment of theattached Exhibit A, including the salary, the benefit cost and theAllocation Percentage attributable to such replacement or substituted Employee,which shall not be unreasonably withheld. If an Employee is subject to aTermination Event and if HG has not replaced or substituted such Employee, allreferences to such Employee and costs allocations to such Employee shall bedeemed automatically deleted from the attached Exhibit A.

 

*2.             Term.*Subject to the terms and conditions set forthherein, this Agreement shall commence on the Effective Date and continue infull force and effect for one year (the *“Term”),*

 

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unless terminated asprovided herein, and the Term shall, unless terminated by mutual writtenagreement by the Parties, be automatically extended for an additional one yearperiod.

 

3.             *Fees.*

 

3.1            *Consideration.*

 

(a)              In consideration offurnishing the Services, TH shall pay to HG a fee *(*the*“Fee”)*in amount equal to theAllocation Percentage multiplied by the Employees’ salaries plus the costs of the benefits,including, without limitation, the costs of group health insurance anddisability insurance (the *“Benefits”),*asset forth on the attached Exhibit A. The Allocation Percentage isbased on the percentage of employees employed by TH and HG, respectively, asset forth in Exhibit A.

 

(b)             ByJanuary 15 of each successive year, the parties shall submit thefollowing: (i) a list of Employees currently employed; (ii) the totalamount of the Benefits for said Employees for the preceding year; (iii) the total number ofemployees employed by each entity, respectively; and (iv) the percentageof employees employed by each entity respectively. The Fee for the followingyear shall then be calculated based on (i) – (iv) and Exhibit Ashall be amended accordingly.

 

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

 

4.               *Ownership Rights.*Allright, title and interest in and to all products, services and materialsprovided to TH by the Employees under this Agreement shall be and remain the propertyof TH exclusively. HG shall have no right, title or interest in or to anyproducts, services or materials that are produced in connection with theServices performed by the Employees pursuant to the terms of this Agreement.With specific regard to Sean Higgins, that he is a shared Employee shall notimpair, limit or waive the attorney-client relationship existing between himand TH, and the privileges and confidentiality related thereto. Notwithstandingthe above,HG shall retain all rights, title and interest to any and all intellectualproperty that it utilizes or may utilize as part of the Services.

 

5.             *Termination.*

 

5.1        *Default.*If either Party (the *“Defaulting Party”)*materially defaults inthe performance of its obligations under this Agreement, and if such default isnot cured within 15 days after written notice is given to the Defaulting Party specifyingthe default, then the other Party may, by giving written notice to theDefaulting Party, terminate this Agreement as of the date specified in thenotice of termination.

 

5.2        *Notice by TH.*THshall have the right to terminate this Agreement by giving written notice to HGas of the date specified in such notice of termination; provided that suchnotice is given at least 30 days prior to the effective date of termination.

 

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5.3 *Payments.*Upontermination of this Agreement pursuant to Section 5.1 or 5.2,TH’s 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 thedate of such termination.

 

5.4*Assistance.*Upon any terminationof this Agreement, HG will assist and comply with TH’s reasonable directions tocause the orderly transition and migration of the Services to TH or a thirdparty contractor to whom TH chooses to transfer the Services.

 

6.              *Liability.*

 

6.1*Indemnification.*Except asprovided for herein, HG shall indemnify, defend and hold harmless TH and itsparent, subsidiaries, affiliated companies, and their officers, directors andemployees (individually and collectively referred to as an *“TH Indemnified Party”)*from and againstall demands, liens, claims, actions, causes of action, obligations, costs,expenses, attorneys’ fees, damages, controversies, judgments, costs oflitigation and liabilities *(“TH Claims”)*causedby, incurred or otherwise arising from or relating to the Employees, including,without limitation, (i) any pension or other compensation or employeebenefits-related liabilities, and (ii) as a result of employee legalmatters, such as employee related litigation. TH shall indemnify, defend andhold harmless HG and its subsidiaries, affiliated companies, and theirofficers, directors and employees (individually and collectively referred to asan *“HG*Indemnified Party”, andcollectively with the TH Indemnified Party, an *“IndemnifiedParty”)*from and against all demands, liens, claims, actions, causesof action, obligations, costs, expenses, attorneys’ fees, damages, controversies,judgments, costs of litigation and liabilities *(“HGClaims”,*and collectively with the TH Claims, *“Claims”)*caused by, incurred or otherwisearising from or relating to the actions of the Employees while performingServices on behalf of TH.

 

6.2*Notice and Procedures.*AnIndemnified Party seeking indemnification pursuant to Section 6.1will give prompt written notice in reasonable detail (the *“Notice of Claim”)*to HG or TH, as thecase may be, stating the basis of any Claim for which indemnification is beingsought hereunder within 30 days after the Indemnified Party’s knowledgethereof; *provided, however,*thatan Indemnified Party’s failure to provide any such notice to either TH or HG,as the case may be, will not relieve HG or TH, as the case may be, of or fromany of its obligations hereunder, except to the extent that the HG or THsuffers prejudice as a result of such failure. If the facts giving rise to suchindemnification involve an actual or threatened claim by or against a thirdparty:

 

(a)           the Parties will cooperate in the prosecution or defenseof such claim and will furnish such records, information and testimony andattend to such proceedings as may be reasonably requested in connectiontherewith; and

 

(b)           an Indemnified Party will make no settlement of any Claimthat would give rise to liability on the part of HG or TH without HG’s or TH’sprior written consent which will not be unreasonably withheld or delayed, andHG and TH, as the case may be, will not be liable for the amount of any settlementaffected without its prior written consent.

 

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*7 .             Acknowledgement.*During the Term, TH shall pay the Fees andlate charges to HG without any deductions made whatsoever for state or federaltaxes of any kind.

 

*8.              Compliance.*HG agrees to: (i) pay all applicable federal and/or state taxeswhich arise or relate to the employment of any Employee under this Agreement; (ii) payall premiums and contributions with respect to the Benefits as they apply tosuch Employees; and (iii) comply with employer obligations with respect toHG’s employees, including the Employees, under applicable federal, state andlocal laws and regulations.

 

*9.             Independent Contractor Status.*The Parties agree and acknowledge that HG (and any person employed byHG) is performing the Services hereunder as an independent contractor. Nothingcontained in this Agreement shall be deemed to constitute either Party as anagent, representative, partner, joint venturer or employee of the other Partyfor any purpose.

 

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

 

*11.          Miscellaneous.*

 

11.1 *Notices.*All notices, requests, demandsand other communications required or permitted to be given under this Agreementshall be in writing and shall be deemed given (i) two business days afterbeing sent by a nationally recognized overnight delivery service or (ii) uponreceipt of electronic or other confirmation of transmission if sent viafacsimile, in each case at the addresses or facsimile numbers (or at such otheraddress 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:                                  |
|       | Edward J. Herbst                                          |
|       | Fax: (702)  889-7691                                      |
|       |                                                      |
| 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 thisAgreement (including the attached exhibit) shall be construed to be oneinstrument that reflects the Parties’ entire agreement as to matters expressedherein. There are no representations, agreements, arrangements orunderstandings (whether oral or written) between or among the Parties relatingto the subject matter of this Agreement that are not fully expressed herein.

 

11.3 *Amendment.*ThisAgreement may not be amended except by an instrument in writing signed onbehalf of each of the Parties.

 

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11.4*Assignment/Change of Control.*NeitherParty may, without the prior written consent of the other Party, assign ortransfer this Agreement, in whole or in part, either voluntarily or byoperation of law, and any such assignment or transfer shall be null and void.

 

11.5*Governing Law; Jurisdiction.*ThisAgreement has been executed and delivered in, and shall be governed by andconstrued in accordance with the internal laws (as opposed to the conflicts oflaw provisions) of, the State of Nevada. Any litigation arising out of orrelated to this Agreement shall be instituted and prosecuted only in theappropriate state or federal court situated in Clark County, Nevada. Each Partyhereto hereby submits to the exclusive jurisdiction and venue of such courtsfor purposes of any such action and the enforcement of any judgment or orderarising therefrom. Each Party hereto hereby waives any right to a change ofvenue and any and all objections to the jurisdiction of the state and federalcourts located in Clark County, Nevada.

 

11.6*Waivers.*No delay or failure byany Party to exercise or enforce at any time any right or provision of thisAgreement shall be considered a waiver thereof or of such party’s rightthereafter to exercise or enforce each and every right and provision of thisAgreement. To be valid, a waiver shall be in writing, but need not be supportedby consideration. No single waiver shall constitute a continuing or subsequentwaiver.

 

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

 

11.8*Survival of Certain Provisions.*Notwithstandinganything contained in this Agreement, the provisions of Sections 4, 5.3,6 and 11 shall survive the expiration of the Term or the termination ofthis Agreement.

 

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

 

11.10*Partial Invalidity.*Eachprovision hereof shall be interpreted in such manner as to be effective andvalid under applicable law, but in case any provisions herein are, for anyreason, held to be invalid, illegal or unenforceable in any respect, suchprovisions shall be ineffective to the extent, but only to the extent, of suchinvalidity, illegality or unenforceability without invalidating the remainderof such provisions or any other provisions hereof, unless such a constructionwould be unreasonable.

 

11.11 *Executionin Counterparts; Facsimile Signatures.*This Agreement may beexecuted in counterparts, each of which shall be considered an originalinstrument, but all of

 

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which together shall beconsidered one and the same agreement. Facsimile copies of the signature page hereofshall be deemed originals and shall be binding for all purposes.

 

IN WITNESS WHEREOF, the Parties have executed thisAgreement to be effective as of the Effective Date.

 
|   | Herbst Gaming, Inc., a Nevada corporation   |
|--------|--------------------------------------------------|
|   |                                             |
|   | By:                                              | /s/ Edward 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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