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, 2009.
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 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.
