**Exhibit 10.44**

 

ADVERTISING PURCHASING AGREEMENT

 

This Advertising Purchase Agreement is made andentered into between Herbst Gaming Inc., a Nevada corporation (hereinafter “HGI”) and TERRIBLE HERBST INC., a Nevadacorporation, (hereinafter “TH’’). Now for valuable consideration, receipt ofwhich is acknowledged, the parties agree as follows:

 

1) HGI Obligations.By this agreement the Parties have agreed to allow HGI to purchase advertisingtime on TH’s network of gas pump and interior television screens located at THoperated gas stations identified in Schedule A. HGI will be allocated 50% ofthe available time not sold to 3rd party advertisers on each 4-5minute loop. HGI will be responsible for the content of its advertisements. HGI will pay TH a flat rate of $30,000 per monthfor the time. All payments will be made monthly. This monthly payment amount willbe offset by any revenues received from 3rd party advertisers.

 

2) Herbst GamingExclusivity. TH hereby agrees that HGI will be the exclusive advertiser ofcasinos or other gaming related products on the TH network, unless HGI agrees,in writing, to allow other such advertising.

 

3) Term. The termof the agreement shall be for 12 months commencing on January 1, 2008.

 

4) Video and AudioDisplay. The parties agree that there will be a four to five minutecontinuously running television loop at each location. TH shall be entitled touse the remaining time of the loop for its own purposes of offer it for sale toother 3rd party advertisers.

 

a.                    Media.TH will provide and maintain a television loop (approximately 4-5 minutes inlength) on LCD screens that operate continuously on the dispensers and insideof the convenience store that incorporates TH’s specified content. The loopwill provide entertainment and advertising content. HGI will provide TH withits video ads all of which will be incorporated by TH into the video loop. THwill arrange for and manage all video and video-related operations. Neitherparty may modify the content of the video prepared by the other. HGI shallprovide to TH its ad content by the 10thof the month preceding the month in which the ads will run.

 

b.                   Saleof Advertising by HGI. HGI is entitled to sell, give, or otherwise use its timein the television loop for advertising. HGI will usecommercially reasonable efforts to avoid advertising that is likely to beoffensive to motorists. TH retains final approval on all advertisementssubmitted by HGI, which approval shall not unreasonably be withheld.

 

c.                    Locations. The initial locationsfor the entire advertising network are set forth in Schedule A.

 

d.                   Additional AdvertisingTime.TH and HGI may amend this agreement to add more advertising time to be sold toHGI, if desired *by*TH. TH and HGIcan negotiate compensation at that time.

 

e.                    Chevron Guidelines. As it applies toChevron branded stations, HGI will adhere to Chevron’s published Video at thePump content guidelines.

 

5) Maintenance.Once installed TH is required to maintain at its expense the equipment in goodcondition; to make sure the equipment remains compatible so as to not interferewith its gasoline dispensing equipment; and TH is exclusively responsible forany service disruption.

 

6) Renewal. Atthe end of the 12-month term, all parties may negotiate an extension.

 

7) EarlyTermination.

 

a.                    TH may, upon 15 dayswritten notice terminate this Agreement as to any location as to which HGI isin material breach of a material contractterm that is not cured within 30 days after notice of the breach is given toHGI by TH and the Agreement shall terminate as to that locationeffective that date.

 

b.                   TH may terminate thisAgreement as to any location where it ceases operating a servicestation/convenience store. However, should it terminate in this manner for morethan 15 location, the parties agree to negotiate a reduction in the monthly fee(for purposes of this section, the number of stores will be measured from thelocations listed on Schedule A.

 

8) Accounting &Audit Rights. TH will provide HGI with a monthly accounting of all revenuereceived from 3rd party advertisers and make adjustment to themonthly rental payment based on such accounting. HGI has the right, at its ownexpense, to audit the books and records of TH as they apply to the advertisingset forth in this Agreement. Should those books and records have a discrepancyof more than 5%, TH shall repay that amount and reimburse HGI for the audit.

 

9) MiscellaneousTerms.

 

Each personsigning this Agreement represents that he has authority to bind the party forwhich he signs. This Agreement may be executed in one or more counterparts,each of which shall be deemed an original. This writing contains the entireagreement of the parties. In the event of any conflict between the specificterms of this Agreement and the terms of any such other prior agreement, theterms of this Agreement govern. No supplement, modification or waiver of thisAgreement shall be binding unless executed in writing by the party to be boundthereby. No representations other than those expressly set forth in thiswritteri agreement were made or relied upon by either party. No agent,employee, or other representative of either party is empowered to alter any ofthe terms of this Agreement. This Agreement is binding on the parties and eachof their successors and permitted assigns. Neither Party may assign thisAgreement without the prior written consent of the other, said consent not tobe unreasonably withheld.

 

The validity,interpretation, and performance of this Agreement shall be controlled by andconstrued under Nevada law. Venue for anylegal action or mediation proceeding relating to or arising out of thisAgreement shall be in Clark County, Nevada. Nothing in this Agreementshall be construed to constitute or appoint either party as the agent or representativeof the other party for any purpose whatsoever, or to grant to either party anyrights or authority to assume or create any obligation or responsibility,express or

 

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implied, for or on behalfof or in the name of the other, or to bind the other in any way or mannerwhatsoever. This Agreement does not provide for a joint venture, partnership,agency or employment relationship between the parties, or any otherrelationship.

 

Any failure of eitherparty to enforce or require the strict performance of any contract provisionshall not constitute a waiver of such provision or of any breach of suchprovision, nor in any way affect the right of such party to strictly enforcesame. Any notice to be given under this Agreement shall be in writing andaddressed to the party at the address of its principal place of business (asstated below or at such other address as either party may hereafter designatein writing. Any such notice shall be deemed to have been duly given uponpersonal delivery or three (3) business days after being enclosed in aproperly sealed and addressed envelope, if sent by registered or certifiedmail, and if deposited (postage and registry or certification fee prepaid) in apost office or branch post office regularly maintained by the United StatesGovernment.

 

10)Dispute Resolution. The parties agree that any arid all controversy ordispute arising out of the relationship, including claims for breach of contract, violation of public policy,breach of implied promises, intentional infliction of emotional distress andany other alleged claims which are not settled by mutual agreement andgood faith negotiation, shall be submitted to final and binding arbitration toan arbitrator with no less than 10 yearsexperience in arbitrating contractual disputes in Clark County, Nevada. Anysuch claim, dispute or controversyshall be resolved pursuant to the following three step process: 1) negotiationof the dispute in a face to face meeting by principals only; 2) non-binding mediation, and if these steps fail;3) binding arbitration before a neutral mutually selected arbitrator.Judgment on the award may be entered by any court having jurisdiction thereofin Las Vegas, Nevada. The parties agree that the prevailing party herein shallbe entitled to recover its costs, disbursements and reasonable attorney’s feesfrom the non-prevailing party following thefinal award. Mediation shall be confidential. In the event that the parties areunable to resolve the dispute by way of mediation, the matter will besubmitted to binding arbitration. The parties shall mutually agree on amediator or arbitrator as appropriate within 10 days of the first partydemanding mediation or arbitration. If the parties cannot agree on a mediator/arbitrator, a presiding judge in the ClarkCounty District Court in Clark County, Nevada shall have jurisdiction toappoint same. Once appointed, if themediator determines that either of the parties failed to make a good faithattempt to resolve the dispute, that mediator will have the authority toeither sanction the party for failing to comply with this provision or thatparties’ failure to participate in themediation in good faith will be deemed a factor to deny that party attorney feesin the event that the matter proceedsto arbitration. In consideration of each party’s agreement to submit toarbitration any disputes that arise out of the engagement relationship betweenthem, each party agrees that arbitration shall constitute his/her/its exclusivelegal remedy and each party expressly waivesthe right to pursue legal redress of any kind in any other forum and expresslywaives the right to any jury trial. Notwithstanding the foregoing,either party shall have the limited right to seek equitable relief in the formof a temporary restraining order or preliminary injunction in a court of competent jurisdiction to protect that partyfrom actual or threatened irreparable injury resulting from an alleged breach of this agreement pending a final decisionin arbitration. This agreement shall be governed by and constructed inaccordance with the laws of the State of Nevada without regard toconflict of law principles. Venue is hereby stipulated to Clark County, Nevada.Both parties waive their rights to any other jurisdiction and venues.

 

11)Non Disclosure. TH and HGI will not discuss this transactionwith any third party and will not disclose its terms to any third party. TH will not (i) solicit, initiate, encourage,enter into or conduct any discussions, or enter into any agreement orunderstanding with any other person or entity regarding the matterscovered in this agreement.

 

12)Mutual Representations of Authority to act. Each party represents that they are a duly formedcorporation duly organized, validly existing and in good standing underthe laws of their respective states of incorporation. Each has the corporatepower and authority to carry on its business as now being conducted and is dulyqualified and in good standing, authorized to do business in every jurisdictionwithin which the parties intend to conduct business. Each party will secure asneeded all corporate approvals by its Board of Directors to consummate thetransaction. Each party has all licenses and permits (federal, state and local)required by governmental authority to own, operate and to carry on its businessas now being conducted.

 

 

IN WITNESS WHEREOF, the parties have executed thisAdvertising Agreement

 

Effective the 1st day of March 2008.

 

 
|   | TERRIBLE HERBST, INC.           |   | **HERBST  GAMING, INC**            |
|--------|---------------------------------|--------|------------------------------------|
|   |                            |   |                               |
|   |                            |   |                               |
|   | /s/ Jerry E. Herbst             |   | /s/  Timothy P. Herbst             |
|   | By:   Jerry E. Herbst |   | By:    Timothy P. Herbst |

 

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