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EXHIBIT 10.32
FIRST AMENDMENT TO CONSULTING AGREEMENT
This FIRST AMENDMENT TO CONSULTING AGREEMENT, ("Amendment") is made and
entered into as of May 30, 1998, by and among Inland Entertainment Corporation,
a Utah corporation (the "Company"), and Xxxxxx Xxxxx Consultants, Inc., a
California corporation (the "Consultant").
RECITALS
WHEREAS the parties hereto have previously entered into that certain Consulting
Agreement (the "Agreement") dated February 13, 1998; and
WHEREAS the parties desire and intend to amend and modify the Agreement as set
forth herein.
NOW THEREFORE, for good and valuable consideration, receipt of which is
acknowledged hereby, Company and Consultant hereby agree as follows:
1. Incorporation by Reference. The parties hereto incorporate by reference
herein each and every covenant, term and condition contained in the Agreement as
if more fully set forth herein, subject only to the amendment and modifications
contained in this Amendment.
2. Amendment & Modification. In accordance with the provisions of Section 15 of
the Agreement, the parties hereby amend and modify the Agreement as follows:
(A) Consulting Services. Section 1.1 is amended as follows:
"1.1 Scope and Term. During the period from February 13, 1998, through
February 13, 1999, the ("Consultation Period"), the Consultant agrees to provide
consulting services from time to time to the Company. During the Consultation
Period, the Consultant shall be engaged by the Company in a consulting capacity
to tender such advisory services and projects as the Consultant may be assigned
from time to time by the Chairman of the Board of the Company for matters
specifically relating to the Barona Casino and the Barona Band of Mission
Indians. The Consultant shall submit a written report regarding the project
assignment and/or services rendered within 15 days of the end of each month of
the Consultation Period (the "Due Date"). If Consultant fails to submit this
written report to the Chairman of the Board within 30 days of the Due Date,
payment to the Consultant under Section 2 shall be suspended. It is further
agreed that either party may terminate this agreement upon 30 days prior written
notice. In the event that Company terminates this agreement prior to the end of
the Consultation Period, the Consultant shall receive all unpaid compensation
due as set forth in Section 2 and shall also receive vesting in the Stock
options as set forth in Section 2.1 as if this agreement was not terminated by
Company. THE PARTIES HERETO SHALL HAVE THE OPTION TO RENEW AND/OR EXTEND THIS
AGREEMENT BEYOND THE INITIAL CONSULTATION PERIOD. THE PARTY SEEKING THE
EXTENSION OR RENEWAL OF THIS AGREEMENT SHALL PROVIDE THE OTHER PARTY WITH
WRITTEN NOTICE OF THE SAME 30 DAYS PRIOR TO
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THE EXPIRATION OF THE INITIAL CONSULTATION PERIOD. UPON RECEIPT OF SUCH WRITTEN
NOTICE, THE PARTIES SHALL ENDEAVOR IN GOOD FAITH TO REACH AN AGREEMENT REGARDING
THE EXTENSION OR RENEWAL OF THIS AGREEMENT. HOWEVER, NEITHER PARTY IS HEREBY
OBLIGATED TO EXTEND OR RENEW THIS AGREEMENT AND ANY SUCH EXTENSION OR RENEWAL
SHALL BE UPON TERMS AND CONDITIONS AS MAY BE AGREED BY THE PARTIES."
(B) Compensation. Section 2 is hereby amended as follows:
2. "Compensation During Consultation Period. During the Consultation Period, so
long as its sole shareholder is physically and mentally able, the Consultant
shall render consultative services to the Company as provided in Section 1 of
this Agreement. The Company shall pay the Consultant as compensation for its
services for the one (1) year period commencing on February 13, 1998, and ending
February 13, 1999 THE SUM OF $12,500 PER MONTH TOGETHER WITH A RETAINER OF
$5,500. ALL PERIODIC PAYMENTS HEREIN SHALL BE PAID on the 10th day following the
end of each month of the Consultation Period. Such payments shall not be made in
the event of the death of the Consultant's sole shareholder or his disability
during the Consultation Period. Furthermore, compensation shall cease upon the
termination of this Agreement, OR ANY EXTENSION OR MODIFICATION HEREOF, except
as provided above. The Consultant shall not be entitled to any payments other
than as set forth in this Section 2."
3. Entire Agreement/Merger. This Amendment together with the Agreement contains
the entire and complete understanding among the parties concerning its subject
matter and all representations , agreements, arrangements and understandings
between or among the parties, whether oral or written, have been fully merged
herein and are superceded hereby.
4. Severability. In the event that any one or more of the provisions contained
herein (or parts thereof), or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
5. Binding Effect. (a) This Amendment shall be binding upon and inure to the
benefit of the Consultant and any successor of or to the Company, including,
without limitation, any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and successor
shall thereafter be deemed included in the definition of the Company for
purposes of this Amendment), but shall not otherwise be assignable or delegable
by the Company. Unless the Consultant otherwise agrees the Company's obligations
hereunder shall not be terminated by any such acquisition of all or
substantially all of the business and/or assets of the Company.
(b) This Amendment shall inure to the benefit of and be
enforceable by the Consultant's and its sole shareholder's personal or legal
representatives, executors, administrators, successors, heirs, distributees
and/or legatees.
(c) This Amendment is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Amendment or any rights or obligations hereunder except as
expressly provided in subparagraph (a) of this Paragraph.
(d) This Amendment is intended to be for the exclusive
benefit of the parties hereto, and no third party shall have any rights
hereunder.
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6. Amendment/Waiver. This Amendment may be modified, amended, supplemented,
and/or rescinded only through an express written instrument signed by all of the
parties or their respective successors and assigns. Any party may specifically
and expressly waive in writing any portion of this Amendment or any breach
hereof, but no such waiver shall constitute a further or continuing waiver of
any preceding of succeeding breach of the same or any other provision. The
consent by one party to any act for which such consent was required shall not be
deemed to imply consent or waiver of the necessity of obtaining such consent for
the same or similar acts in the future.
IN WITNESS WHEREOF, the parties have executed and delivered this FIRST
AMENDMENT TO CONSULTING AGREEMENT.
Dated: 6/24/98 Inland Entertainment Corporation
------------------------------- a Utah corporation
By: /s/ L. XXXXXX XXXXX, XX
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L. Xxxxxx Xxxxx, XX
Chairman of the Board
Dated: 6/26/98 Xxxxxx Xxxxx Consultants, Inc.
------------------------------ a California corporation
By: /s/ XXXXXX X. XXXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxxx
President
(Signature Page to First Amendment to Consulting Agreement)
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