EXHIBIT 10.42
AMENDMENT
TO
CONSULTING AND NONCOMPETITION AGREEMENT
THIS AMENDMENT is made as of the 24th day of November, 1998 by Xxxxxxx
Xxxxxxx, (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 X. FLORIDA GAMING CENTERS, Case No. 98-05324 CA(11);
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
Eighty-four Thousand and No/100 ($84,000), 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 payment by the Company to the
Consultant of $10,000 per month for each of the ninety-six months following the
date hereof, the Consultant agrees for a period of eight years from the date..."
The Company shall make such payments to the Consultant on the last day of each
calendar month, commencing January 31, 1998 and ending with the last installment
payment of $10,000 due on November 30, 2006. Additionally, the second word of
the last line of paragraph 1 of the Agreement, "sixty" is hereby changed to
"twenty".
(c) Upon execution of this Amendment, the Company shall pay the past-due
premium of $14,000 for the Consultant's life insurance policy referenced in
Paragraph 2 of the Agreement. Thereafter, the premium for such policy shall be
paid on or before the last day of February through and including February, 2006.
(d) Paragraph 8 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 and 2 hereof. The outstanding balance of the consulting fees
referenced in Paragraph 1 shall be calculated by multiplying $10,000 by the
number of months remaining in the term of this Agreement. The outstanding
balance due with respect to the life insurance premiums referenced in Paragraph
2 shall be calculated by multiplying $1166.60 (monthly installments of $14,000
annual premium) by the number of months remaining in the 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 Paragraphs 1 and 2, 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, 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
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Name:
Title:
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CONSULTANT:
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Xxxxxxx X. Xxxxxxx
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Dated: November____, 1998
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 98-05324 CA (11)
XXXXXXX X. XXXXXXX,
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,
Xxxxxxx X. Xxxxxxx, 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
