**EXHIBIT 10.43**

 

**AMENDEDAND RESTATED SHARED SERVICES AGREEMENT**

 

**THISAMENDED 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, LasVegas, 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 Nevadacorporation (collectively, “TH”), whose address is 5195 Las Vegas Blvd.South, Las Vegas, Nevada 89119.  HG andTH are sometimes individually referred to as a “Party” and collectivelyas the “Parties”.

 

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

 

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

 

WHEREAS, subject to theterms and conditions set forth herein, TH desires to reimburse HG for certainemployees of HG who are listed on the attached Exhibit A (the “HGEmployees”) that perform services (the “HG Services”) for TH asrequested from time to time and as set forth on Exhibit A;

 

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

 

WHEREAS, subject to theterms and conditions set forth herein, HG desires to reimburse TH for certainemployees of TH who are listed on the attached Exhibit A (the “THEmployees” and, with the HG Employees, the “Employees”) that performservices (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 theterms and conditions set forth herein, TH desires that the TH Employees performthe TH Services for HG and charge HG for the costs associated with the THServices; and

 

NOW, THEREFORE, inconsideration of the foregoing recitals and other good and valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, HGand TH agree as follows:

 

1.                                       *Specifications of Work*.

 

1.1                                 *General Services*.

 

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

 

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

 

1.2           *Substitution ofIndividuals*.  In the eventthat an HG Employee or TH Employee resigns as an employee of HG or TH, asapplicable, or has been terminated by HG or TH as an employee, as applicable (a“Termination Event”), the Party whose employee has resigned or beenterminated (the “Affected Employer”) shall provide notice of suchTermination Event to the other Party (the “Affected Party”).  If an HG Employee or a TH Employee is subjectto a Termination Event: (i) the Affected Employer shall use its reasonableefforts to replace or substitute another individual as an employee but shallnot have any liability to the Affected Party for its failure to do so; (ii) theAffected Employer shall provide written notice to the Affected Party of suchreplacement or substitute employee; and (iii) the Parties shall consent inwriting to the amendment of the attached Exhibit A, including thesalary, the benefit cost and the allocation percentage (the “AllocationPercentage”) 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 Agreementshall commence on the Effective Date and continue in full force and effect forone year (the “Term”), unless terminated as provided herein, and theTerm shall, unless terminated by mutual written agreement by the Parties, beautomatically extended for an additional one year period.

 

 

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3.                                       *Fees*.

 

3.1                                 *Consideration*.

 

(a)  Inconsideration of furnishing the HG Services, fees shall be allocated andpayable to HG (the “HG Fee”) in an amount equal to the AllocationPercentage multiplied by the HG Employees’ salaries plus the costs of thebenefits, including, without limitation, the costs of group health insuranceand disability insurance (the “HG Employee Benefits”), as set forth inthe attached Exhibit A.  TheAllocation Percentage is based on the percentage of employees employed by THand HG, respectively, as set forth in Exhibit A.

 

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

 

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

 

3.2                                 *Payment*. The HG Fees, offset by the TH Fees, shall be paid by TH to HG 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 prior to such duedate shall be subject to a monthly late charge of eight percent (8%) of theunpaid balance.

 

4.                                       *Ownership Rights*. All right, title and interest in and to all products, services andmaterials provided to TH by the HG Employees under this Agreement shall be andremain the property of HG, and all right, title and interest in and to allproducts, services and materials provided to HG by the TH Employees under thisAgreement shall be and remain the property of TH.  The Parties shall have no right, title orinterest in or to any products, services or materials that are produced inconnection with the Services performed by the employees of the other Partypursuant to the terms of this Agreement. With specific regard to Sean Higgins, that fact that he is a sharedemployee shall not impair, limit or waive the attorney-client relationshipexisting between him and the Parties, and the privileges and confidentialityrelated thereto.  Notwithstanding theabove, HG and TH shall retain all rights, title and interest to any and allintellectual property that they utilize as part of the provision of Services tothe other Party.

 

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 Partyspecifying the default, then the other Party may, by giving written notice tothe Defaulting Party, terminate this Agreement as of the date specified in thenotice 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 thedate of such termination.

 

5.3                                 *Assistance*. Upon any termination of this Agreement, each Party will assist andcomply with the other Party’s reasonable directions to cause the orderlytransition and migration of the HG Services to TH and the TH Services to HG, asapplicable, or to a third party contractor to whom HG or TH chooses to transferthe 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 allliabilities arising or resulting from the actions of the TH Employees whileproviding Services to, or performing Services on behalf of, HG (the “THClaims”), except to the extent any such TH Claims are caused by the grossnegligence or willful misconduct of TH or a TH Employee.

 

(b)  TH agrees toindemnify HG and its parent, subsidiaries, affiliated companies, and theirrespective directors, officers, agents and employees (each, an “HGIndemnified 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 andall liabilities arising or resulting from the actions of the HG Employees whileproviding Services to, or performing Services on behalf of, TH (the  “HG Claims” and, together with the THClaims, the “Claims”), except to the extent any such HG Claims arecaused 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 6.1will 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 whichindemnification is being sought hereunder within 30 days after the IndemnifiedParty’s knowledge thereof; *provided, however*,that an Indemnified Party’s failure to provide any such Notice of Claim to THor HG, as the case may be, will not relieve HG or TH, as the case may be, of orfrom any of its obligations hereunder, except to the extent that HG or THsuffers prejudice as a result of such failure. If the facts giving rise to such indemnification involve an actual orthreatened claim by or against a third party:

 

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

 

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

 

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

 

7.                                       *Acknowledgement*. During the Term, the Parties shall pay the Fees and late charges withoutany deductions made whatsoever for state or federal taxes of any kind.

 

8.                                       *Compliance*.

 

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

 

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

 

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

 

10.                                 *Separate Expenses*.  Allitems not paid by the Parties pursuant to this Agreement shall be paid for separatelyby 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 orpermitted to be given under this Agreement shall be in writing and shall bedeemed given (i) two business days after being sent by a nationallyrecognized overnight delivery service or (ii) upon receipt of electronicor other confirmation of transmission if sent via facsimile, in each case atthe addresses or facsimile numbers (or at such other address or facsimilenumber 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) shallbe construed to be one instrument that reflects the Parties’ entire agreementas to the matters expressed herein and supersedes all other proposals,agreements, arrangements, understandings, representations and covenants, oralor written, including the 2008 Agreement, and any such prior agreements arehereby expressly terminated.

 

11.3                           *Amendment*. This Agreement may not be amended except by an instrument in writingsigned 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 orby operation of law, and any such assignment or transfer shall be null andvoid.

 

11.5                           *GoverningLaw; 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 or related to this Agreement shall beinstituted and prosecuted only in the appropriate state or federal courtsituated in Clark County, Nevada.  EachParty hereto hereby submits to the exclusive jurisdiction and venue of suchcourts for purposes of any such action and the enforcement of any judgment ororder arising therefrom.  Each Partyhereto hereby waives any right to a change of venue and any and all objectionsto the jurisdiction of the state and federal courts located in Clark County,Nevada.

 

11.6                           *Waivers*.  No delay or failure by any Party to exerciseor enforce at any time any right or provision of this Agreement shall beconsidered a waiver thereof or of such party’s right thereafter to exercise orenforce 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 orlegal proceeding between or among the Parties to enforce, protect, interpret orestablish any of their rights or obligations under this Agreement or any actionor legal proceeding for damages for an alleged breach of any provision of thisAgreement, the prevailing party shall be entitled to recover from the otherparty reasonable expenses, attorneys’ fees and costs.

 

11.8                           *Survivalof Certain Provisions*. Notwithstanding anything contained in this Agreement, the provisions of Sections4, 5.2, 6 and 11 shall survive the expiration of the Term or thetermination of this Agreement.

 

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

 

11.10                     *PartialInvalidity*.  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 be executed incounterparts, each of which shall be considered an original instrument, but allof which together shall be considered one and the same agreement.  Facsimile copies of the signature page hereofshall be deemed originals and shall be binding for all purposes.

 

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IN WITNESS WHEREOF, HGand TH have executed this Amended and Restated Shared Services Agreement to beeffective 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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