EXHIBIT 10.43
AMENDED AND RESTATED SHARED
SERVICES AGREEMENT
THIS AMENDED 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,
Las Vegas, 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 Nevada corporation (collectively, “ TH
”), whose address is 5195 Las Vegas Blvd. South, Las Vegas,
Nevada 89119. HG and TH are sometimes individually referred
to as a “ Party ” and collectively as the
“ Parties ”.
WHEREAS, HG and TH have entered into
that certain Shared Services Agreement dated as of January 9,
2008 (the “ 2008 Agreement ”) with respect to
the provision of certain services to TH by HG;
WHEREAS, HG and TH wish to amend and
restate the 2008 Agreement to provide for the provision of services
by TH to HG, as well as the provision of services by HG to TH,
effective as of January 1, 2009.
WHEREAS, subject to the terms and
conditions set forth herein, TH desires to reimburse HG for certain
employees of HG who are listed on the attached
Exhibit A (the “ HG Employees ”)
that perform services (the “ HG Services ”) for
TH as requested from time to time and as set forth on
Exhibit A ;
WHEREAS, subject to the terms and
conditions set forth herein, HG desires that the HG Employees
perform the HG Services for TH and charge TH for the costs
associated with the HG Services;
WHEREAS, subject to the terms and
conditions set forth herein, HG desires to reimburse TH for certain
employees of TH who are listed on the attached
Exhibit A (the “ TH Employees ” and,
with the HG Employees, the “ Employees ”) that
perform services (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 the terms and
conditions set forth herein, TH desires that the TH Employees
perform the TH Services for HG and charge HG for the costs
associated with the TH Services; and
NOW, THEREFORE, in consideration of
the foregoing recitals and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, HG and
TH agree as follows:
1.
Specifications of Work
.
1.1
General Services
.
(a) The Parties agree that the
general scope and results of the HG Services to be performed by the
HG Employees shall be determined by TH and consist primarily of the
day-to-day functions of TH.
(b) The Parties agree that the
general scope and results of the TH Services to be performed by the
TH Employees shall be determined by HG and consist primarily of
(i) maintaining the price books for certain HG service station
locations; and (ii) providing management oversight of the
service station operations at the Primm sites.
1.2
Substitution of Individuals . In the event that an HG
Employee or TH Employee resigns as an employee of HG or TH, as
applicable, or has been terminated by HG or TH as an employee, as
applicable (a “ Termination Event ”), the Party
whose employee has resigned or been terminated (the “
Affected Employer ”) shall provide notice of such
Termination Event to the other Party (the “ Affected
Party ”). If an HG Employee or a TH Employee is
subject to a Termination Event: (i) the Affected Employer
shall use its reasonable efforts to replace or substitute another
individual as an employee but shall not have any liability to the
Affected Party for its failure to do so; (ii) the Affected
Employer shall provide written notice to the Affected Party of such
replacement or substitute employee; and (iii) the Parties
shall consent in writing to the amendment of the attached
Exhibit A , including the salary, the benefit cost and
the allocation percentage (the “ Allocation Percentage
”) 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 Agreement shall commence on the Effective Date
and continue in full force and effect for one year (the “
Term ”), unless terminated as provided herein, and the
Term shall, unless terminated by mutual written agreement by the
Parties, be automatically extended for an additional one year
period.
3.
Fees .
3.1
Consideration
.
(a) In consideration of
furnishing the HG Services, fees shall be allocated and payable to
HG (the “ HG Fee ”) in an amount equal to the
Allocation Percentage multiplied by the HG Employees’
salaries plus the costs of the benefits, including, without
limitation, the costs of group health insurance and disability
insurance (the “ HG Employee Benefits ”), as set
forth in the attached Exhibit A . The Allocation
Percentage is based on the percentage of employees employed by TH
and HG, respectively, as set forth in Exhibit A
.
(b) In consideration of
furnishing the TH Services, fees shall be allocated and payable to
TH (the “ TH Fees ” and, with the HG Fee, the
“ Fee ”) in an amount equal to the
Allocation Percentage multiplied by the TH Employees’
salaries plus the costs of the benefits, including, without
limitation, the costs of group health insurance and disability
insurance (the “ TH Employee Benefits ” and
together with the HG Employee Benefits, the “ Benefits
”), as set forth in the attached Exhibit A
.
(c) By January 15 of each
successive year, the Parties shall submit to each other the
following: (i) a list of Employees currently employed,
(ii) the total number of employees employed by each entity,
respectively, (iii) the percentage of employees employed by
each entity respectively and (iv) the total amount of the
Benefits for the Employees for the preceding year; The TH and HG
Fees for the following year shall then be calculated based on
(i) — (iv), and Exhibit A shall be amended
accordingly.
3.2
Payment . The HG Fees, offset by the TH Fees,
shall be paid by TH to HG in arrears monthly no later than the
tenth day of each month for the immediately preceding calendar
month, and if not paid by the end of the immediately preceding
calendar month shall be deemed a default hereunder. All Fees
not paid on or prior to such due date shall be subject to a monthly
late charge of eight percent (8%) of the unpaid balance.
4.
Ownership Rights
. All right, title and
interest in and to all products, services and materials provided to
TH by the HG Employees under this Agreement shall be and remain the
property of HG, and all right, title and interest in and to all
products, services and materials provided to HG by the TH Employees
under this Agreement shall be and remain the property of TH.
The Parties shall have no right, title or interest in or to any
products, services or materials that are produced in connection
with the Services performed by the employees of the other Party
pursuant to the terms of this Agreement. With specific regard
to Sean Higgins, that fact that he is a shared employee shall not
impair, limit or waive the attorney-client relationship existing
between him and the Parties, and the privileges and confidentiality
related thereto. Notwith
