Exhibit 10.44
ADVERTISING PURCHASING AGREEMENT
This Advertising
Purchase Agreement is made and entered into between Herbst Gaming
Inc., a Nevada corporation (hereinafter “HGI”) and TERRIBLE HERBST
INC., a Nevada corporation, (hereinafter “TH’’).
Now for valuable consideration, receipt of which is
acknowledged, the parties agree as follows:
1) HGI
Obligations . By this agreement the Parties have agreed to
allow HGI to purchase advertising time on TH’s network of gas
pump and interior television screens located at TH operated gas
stations identified in Schedule A. HGI will be allocated 50% of the
available time not sold to 3 rd party advertisers on
each 4-5 minute loop. HGI will be responsible for the content of
its advertisements. HGI will
pay TH a flat rate of $30,000 per month for the time. All payments
will be made monthly. This monthly payment amount will be
offset by any revenues received from 3 rd party
advertisers.
2)
Herbst Gaming Exclusivity . TH hereby agrees that HGI will
be the exclusive advertiser of casinos or other gaming related
products on the TH network, unless HGI agrees, in writing, to allow
other such advertising.
3) Term
. The term of the agreement shall be for 12 months commencing on
January 1, 2008.
4)
Video and Audio Display . The parties agree that there will
be a four to five minute continuously running television loop at
each location. TH shall be entitled to use the remaining time of
the loop for its own purposes of offer it for sale to other 3
rd party advertisers.
a.
Media . TH will provide and maintain a television loop
(approximately 4-5 minutes in length) on LCD screens that operate
continuously on the dispensers and inside of the convenience store
that incorporates TH’s specified content. The loop will
provide entertainment and advertising content. HGI will provide TH
with its video ads all of which will be incorporated by TH into the
video loop. TH will arrange for and manage all video and
video-related operations. 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 the ads will run.
b.
Sale of Advertising by
HGI. HGI is entitled to sell,
give, or otherwise use its time in the television loop for
advertising. HGI will use commercially reasonable efforts to
avoid advertising that is likely to be offensive to motorists. TH
retains final approval on all advertisements submitted by HGI,
which approval shall not unreasonably be withheld.
c.
Locations . The initial locations
for the entire advertising network are set forth in Schedule
A.
d.
Additional Advertising Time
.
TH and HGI may amend this agreement to add more advertising time to
be sold to HGI, if desired by TH. TH and HGI can negotiate
compensation at that time.
e.
Chevron Guidelines . As it applies to
Chevron branded stations, HGI will adhere to Chevron’s
published Video at the Pump content guidelines.
5)
Maintenance . Once installed TH is required to maintain at
its expense the equipment in good condition; to make sure the
equipment remains compatible so as to not interfere with its
gasoline dispensing equipment; and TH is exclusively responsible
for any service disruption.
6)
Renewal . At the end of the 12-month term, all parties may
negotiate an extension.
7) Early
Termination .
a.
TH
may, upon 15 days written notice terminate this Agreement as to any
location as to which HGI is in material breach of a material contract term that is not cured
within 30 days after notice of the breach is given to HGI by TH and
the Agreement shall terminate as to that location effective
that date.
b.
TH
may terminate this Agreement as to any location where it ceases
operating a service station/convenience store. However, should it
terminate in this manner for more than 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 the
locations listed on Schedule A.
8)
Accounting & Audit Rights . TH will provide
HGI with a monthly accounting of all revenue received from 3
rd party advertisers and make adjustment to the monthly
rental payment based on such accounting. HGI has the right, at its
own expense, to audit the books and records of TH as they apply to
the advertising set forth in this Agreement. Should those books and
records have a discrepancy of more than 5%, TH shall repay that
amount and reimburse HGI for the audit.
9)
Miscellaneous Terms .
Each person
signing this Agreement represents that he has authority to bind the
party for which he signs. This Agreement may be executed in one or
more counterp
