EXHIBIT 10.43
AMENDMENT
TO
CONSULTING AND NONCOMPETITION AGREEMENT
THIS AMENDMENT is made as of the 24th day of November, 1998 by Xxxxx X.
Xxxxxxx, Xx., (the "Consultant") and Florida Gaming Centers, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Consultant and the Company executed a Consulting and
Noncompetition Agreement dated December 31, 1996 (the "Agreement").
WHEREAS, a dispute has arisen regarding the Agreement and a lawsuit has
been filed in the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, XXXXXXX V. FLORIDA GAMING CENTERS, Case No. 98-05568 CA 25;
WHEREAS, the Consultant and the Company desire to modify and amend the
Agreement as provided herein to resolve the lawsuit;
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. DEFINED TERMS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meanings set forth in the Agreement.
2. MODIFICATION AGREEMENT. The Agreement is hereby modified and amended as
follows:
(a) Upon execution hereof, the Company shall pay Consultant the sum of
Seventy-five Thousand and No/100 ($75,000), which represents past due consulting
fees due under the terms of the Agreement and the pre-payment of the revised
consulting fees referenced in subsection (b) below for the months of November
and December, 1998.
(b) The first three lines of Paragraph 1 of the Agreement are hereby
amended in their entirety to read as follows: "In consideration of the Company's
purchase of the Assets from Seller and the additional consideration described
below, the Consultant agrees for a period of ten years from the date of this
Amendment..."
(c) Paragraph 1(a)(1) and (2) are hereby deleted in their entirety and the
following substituted in their stead:
(a) Pay to the Consultant a fee (the "Consulting Fee") as follows:
(1) Six thousand dollars ($6,000) per month during the first five
years of the term (the "First Term") of this Agreement, payable on the last day
of each calendar month, commencing January 1, 1999 and ending with the last
installment payment of $6,000 due on December 31, 2003.
(2) Four thousand fifty dollars ($4,050) per month for the final
five years of the term (the "Second Term") of this Agreement, payable on the
last day of each calendar month, commencing January 1, 2004 and ending with the
last installment payment of $4,050 due on December 31, 2008.
(d) Paragraph 5 of the Agreement is hereby amended to add subsections (i)
and (j) as follows:
(i) PREPAYMENTS. The Company shall have the right at any time during the
term of this Agreement to prepay its obligations by paying Consultant fifty
percent (50%) of the current outstanding balance of its obligations under
Paragraphs 1 hereof. The outstanding balance of the consulting fees referenced
in Paragraph 1(a)(1)shall be calculated by multiplying $6,000 by the number of
months, if any, remaining in the First Term. The outstanding balance due with
respect to the consulting fees referenced in Paragraph 1(a)(2) shall be
calculated by multiplying $4,050 by the number of months remaining in the Second
Term of the Agreement. Upon such prepayment, the Company and the Consultant
shall be relieved of any further obligations under this Agreement.
(j) DEFAULT BY COMPANY. Upon any default by Company in the payment of the
amounts due hereunder, the Consultant shall give written notice to the Company
at Florida Gaming Centers, Inc., 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 and
to R. Xxxxx Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000,xxx hand-delivery, overnight delivery by a nationally recognized
overnight courier service which obtains delivery receipts, or certified mail,
postage prepaid, return receipt requested. Such notice shall be effective upon
delivery, as evidenced by the date upon the delivery receipt. The Company shall
have a period of ninety (90) days thereafter to cure any such default. Upon any
failure by the Company to cure the default within such period, the Consultant
shall be entitled to the entry of a judgment by the Court in the amount of fifty
percent (50%) of the current outstanding balance of the Company's obligations
under Paragraph 1, calculated as set forth above, EX PARTE and in the form of
the judgment attached as Exhibit "A".
3. EXTENT OF AMENDMENT. Except as expressly amended hereby, all terms and
provisions of the Agreement shall remain in full force and effect without
modification. This Amendment shall control over any conflicting provisions of
the Agreement.
4. MISCELLANEOUS. This Amendment shall inure to the benefit of,
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and be binding upon, the parties hereto and their respective legal
representatives, successors and assigns. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to principles of conflicts of law. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one agreement. Captions and section headings contained
in this Amendment are for convenience of reference only and in no way define,
describe, extend, or limit the scope or intent of this Amendment nor the intent
of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the respective dates set forth below.
COMPANY:
Witnesses: FLORIDA GAMING CENTERS, INC. a
Florida Corporation
By
--------------------------------- ---------------------------------
Name:
Title:
Dated: November 24, 1998
CONSULTANT:
By
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Xxxxx X. Xxxxxxx, Xx.
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Dated: November 9, 1998
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IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 98-05568 CA (25)
XXXXX X. XXXXXXX, XX.
Plaintiff,
vs.
FLORIDA GAMING CENTERS, INC.,
Defendant.
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EX PARTE JUDGMENT AFTER DEFAULT
UNDER SETTLEMENT AGREEMENT
THIS CAUSE was before the Court upon the verified motion of the plaintiff,
Xxxxx X. Xxxxxxx Xx., for the entry of judgment EX PARTE following a default in
payment under the "Amendment to Consulting and Noncompetition Agreement", a
settlement agreement, in this action In accordance with paragraph 2(d)j) of that
Amendment, judgment is hereby entered in favor of plaintiff, and against
defendant, in the sum of $ , with post judgment interest from and after this
dare as provided by law, for which let execution issue.
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CIRCUIT JUDGE
Copies furnished to:
Counsel of record
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