**EXHIBIT 10.44**

 

**ADVERTISINGPURCHASING AGREEMENT**

 

This Advertising PurchaseAgreement is made and entered into between Herbst Gaming Inc., a Nevadacorporation (hereinafter “HGI”) and TERRIBLE HERBST INC., a Nevada corporation,(hereinafter “TH’’). Now for valuable consideration, receipt of which isacknowledged, the parties agree as follows:

 

1)              HGI Obligations. By this agreement the Parties haveagreed to allow HGI to purchase advertising time on TH’s network of gas pumpand interior television screens located at TH operated gas stations identifiedin Schedule A. HGI will be allocated 50% of the available time not sold to 3rd partyadvertisers on each 4-5 minute loop. HGI will be responsible for the content ofits advertisements. HGI will pay TH a flat rate of $30,000 per month for thetime. All payments will be made monthly. This monthly payment amount will beoffset by any revenues received from 3rd party advertisers.

 

2)              Herbst Gaming Exclusivity. TH hereby agrees that HGI will be theexclusive advertiser of casinos or other gaming related products on the THnetwork, unless HGI agrees, in writing, to allow other such advertising.

 

3)              Term. The term of the agreement shall be for 12 monthscommencing on January 1, 2009.

 

4)              Video and Audio Display. The parties agree that there will be afour to five minute continuously running television loop at each location. THshall be entitled to use the remaining time of the loop for its own purposes ofoffer it for sale to other party advertisers.

 

a.               Media. TH will provide and maintain a television loop(approximately 4-5 minutes in length) on LCD screens that operate continuouslyon the dispensers and inside of the convenience store that incorporates TH’sspecified content. The loop will provide entertainment and advertising content.HGI will provide TH with its video ads all of which will be incorporated by THinto the video loop. TH will arrange for and manage all video and video-relatedoperations. Neither party may modify the content of the video prepared by the other.HGI shall provide to TH its ad content by the 10 th  of the month preceding the month in which theads will run.

 

b.              Sale of Advertising by HGI. HGI is entitled to sell, give, orotherwise use its time in 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 locations for the entire advertisingnetwork are set forth in Schedule A.

 

d.              Additional Advertising Time. TH and HGI may amend this agreement toadd more advertising time to be sold to HGI, if desired**byTH. TH and HGI can negotiate compensation at that time.

 

e.               Chevron Guidelines. As it applies to Chevron brandedstations, HGI will adhere to Chevron’s published Video at the Pump contentguidelines.

 

5)              Maintenance. Once installed TH is required tomaintain at its expense the equipment in good condition; to make sure theequipment remains compatible so as to not interfere with its gasolinedispensing equipment; and TH is exclusively responsible for any servicedisruption.

 

6)              Renewal. At the end of the 12-month term, all parties maynegotiate an extension.

 

7)              Early Termination.

 

a.               TH may, upon 15 days written noticeterminate this Agreement as to any location as to which HGI is in materialbreach of a material contract term that is not cured within 30 days afternotice of the breach is given to HGI by TH and the Agreement shall terminate asto that location effective that date.

 

b.              TH may terminate this Agreement as to anylocation where it ceases operating a service station/convenience store.However, should it terminate in this manner for more than 15 location, theparties agree to negotiate a reduction in the monthly fee (for purposes of thissection, the number of stores will be measured from the locations listed onSchedule A.

 

8)              Accounting & Audit Rights. TH will provide HGI with a monthlyaccounting of all revenue received 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.

 

 

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9)              Miscellaneous Terms. Each person signing this Agreementrepresents that he has authority to bind the party for which he signs. ThisAgreement may be executed in one or more counterparts, each of which shall bedeemed an original. This writing contains the entire agreement of the parties.In the event of any conflict between the specific terms of this Agreement andthe terms of any such other prior agreement, the terms of this Agreementgovern. No supplement, modification or waiver of this Agreement shall bebinding unless executed in writing by the party to be bound thereby. Norepresentations other than those expressly set forth in this written agreementwere made or relied upon by either party. No agent, employee, or otherrepresentative of either party is empowered to alter any of the terms of thisAgreement. This Agreement is binding on the parties and each of their successorsand permitted assigns. Neither Party may assign this Agreement without theprior written consent of the other, said consent not to be unreasonablywithheld. The validity, interpretation, and performance of this Agreement shallbe controlled by and construed under Nevada law. Venue for any legal action ormediation proceeding relating to or arising out of this Agreement shall be inClark County, Nevada. Nothing in this Agreement shall be construed toconstitute or appoint either party as the agent or representative of the otherparty for any purpose whatsoever, or to grant to either party any rights orauthority to assume or create any obligation or responsibility, express orimplied, for or on behalf of or in the name of the other, or to bind the other inany way or manner whatsoever. This Agreement does not provide for a jointventure, partnership, agency or employment relationship between the parties, orany other relationship.  Any failure ofeither party to enforce or require the strict performance of any contractprovision shall not constitute a waiver of such provision or of any breach ofsuch provision, nor in any way affect the right of such party to strictlyenforce same. Any notice to be given under this Agreement shall be in writingand addressed to the party at the address of its principal place of business(as stated below or at such other address as either party may hereafterdesignate in writing. Any such notice shall be deemed to have been duly givenupon personal delivery or three (3) business days after being enclosed ina properly 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 allcontroversy or dispute arising out of the relationship, including claims forbreach of contract, violation of public policy, breach of implied promises,intentional infliction of emotional distress and any other alleged claims whichare not settled by mutual agreement and good faith negotiation, shall besubmitted to final and binding arbitration to an arbitrator with no less than10 years experience in arbitrating contractual disputes in Clark County,Nevada. Any such claim, dispute or controversy shall be resolved pursuant tothe following three step process: 1) negotiation of the dispute in a face toface meeting by principals only; 2) non-binding mediation, and if these stepsfail; 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 the final award. Mediation shall beconfidential. In the event that the parties are unable to resolve the disputeby way of mediation, the matter will be submitted to binding arbitration. Theparties shall mutually agree on a mediator or arbitrator as appropriate within10 days of the first party demanding mediation or arbitration. If the partiescannot agree on a mediator/arbitrator, a presiding judge in the Clark CountyDistrict Court in Clark County, Nevada shall have jurisdiction to appoint same.Once appointed, if the mediator determines that either of the parties failed tomake a good faith attempt to resolve the dispute, that mediator will have the authorityto either sanction the party for failing to comply with this provision or thatparties’ failure to participate in the mediation in good faith will be deemed afactor to deny that party attorney fees in 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 waives the right to pursue legal redressof any kind in any other forum and expressly waives the right to any jurytrial. Notwithstanding the foregoing, either party shall have the limited rightto seek equitable relief in the form of a temporary restraining order orpreliminary injunction in a court of competent jurisdiction to protect thatparty from actual or threatened irreparable injury resulting from an allegedbreach of this agreement pending a final decision in arbitration. Thisagreement shall be governed by and constructed in accordance with the laws ofthe State of Nevada without regard to conflict of law principles. Venue ishereby stipulated to Clark County, Nevada. Both parties waive their rights toany other jurisdiction and venues.

 

11)        Non Disclosure. TH and HGI will not discuss thistransaction with any third party and will not disclose its terms to any thirdparty. TH will not (i) solicit, initiate, encourage, enter into or conductany discussions, or enter into any agreement or understanding with any otherperson or entity regarding the matters covered in this agreement.

 

12)        Mutual Representations of Authority toAct. Each partyrepresents that they are a duly formed corporation duly organized, validlyexisting and in good standing under the laws of their respective states ofincorporation. Each has the corporate power and authority to carry on itsbusiness as now being conducted and is duly qualified and in good standing,authorized to do business in every jurisdiction within which the parties intendto conduct business. Each party will secure as needed all corporate approvalsby its Board of Directors to consummate the transaction. Each party has alllicenses and permits (federal, state and local) required by governmentalauthority to own, operate and to carry on its business as now being conducted.

 

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IN WITNESS WHEREOF, theparties have executed this Advertising Agreement

Effective the 1st day ofJanuary, 2009.

 

 

| 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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