EXHIBIT 10.6
OPTION TO PURCHASE THE RV PARK PROPERTY AND RIGHT OF FIRST REFUSAL
BETWEEN
PROSPECTOR GAMING ENTERPRISES, INC.
A Nevada Corporation
AND
LAST CHANCE, INC.,
A Nevada Corporation
OPTION TO PURCHASE THE RV PARK PROPERTY AND RIGHT OF FIRST REFUSAL
This Option to Purchase the RV Park Property and Right of First Refusal
(Agreement) is made this 27th day of December, 2001, by and between Prospector
Gaming Enterprises, Inc. (PGE) and Last Chance, Inc., a Nevada corporation (Last
Chance).
RECITALS:
A. Capitalized terms used in this Agreement and not otherwise
defined shall have the meanings ascribed to such terms in Section 1.
B. PGE is the owner of the RV Park Property upon which Gold Ranch
RV Resort L.L.C., a Nevada limited liability company, operates the Gold Ranch RV
Resort pursuant to the RV Park Lease.
C. Last Chance will, at the Closing, assume management
responsibility for the Gold Ranch RV Resort pursuant to the Gold Ranch RV Resort
Management Agreement.
D. Last Chance desires to acquire an option to purchase the RV Park
Property and a right of first refusal with respect thereto, and PGE is willing
to grant such option and right of first refusal on the terms and conditions set
forth in this Agreement.
E. This Agreement is one of the Integrated Agreements by and
between Last Chance and Prospector Gaming Enterprises, Inc., and its Affiliates,
for the acquisition by Last Chance of all of the Integral Properties and Assets
of the Gold Ranch Casino and RV Resort.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants and agreements provided below, the execution and delivery of
the Integrated Agreements, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS.
1.1 "Affiliate" means as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member of
the immediate family (including parents, spouse, children, grandchildren,
brothers and sisters, of such individual and any trust the principal beneficiary
of which is such individual or one or more members of such individual's
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control"
(including its correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or cause the
direction of the management or policies, whether through the ownership of
securities, limited liability company or partnership or other ownership
interests, by contract or otherwise.
1.2 "Asset Purchase Agreement" means the Asset Purchase Agreement by
and between Prospector Gaming Enterprises, Inc., a Nevada Corporation and Last
Chance, Inc., a Nevada Corporation, executed contemporaneously herewith and as
to which this Agreement is an integral part.
1.3 "CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
1.4 "Closing" means the completion of the transaction contemplated
by the Integrated Agreements on the Closing Date.
1.5 "Closing Date" means the last day of the month in which all
conditions precedent to the Closing have occurred as provided in the Asset
Purchase Agreement.
1.6 "Environmental Claim" means, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a "claim")
by any other person alleging or asserting such person's liability for
investigatory costs, cleanup costs, Governmental Authority response costs,
damages to natural resources or other Premises, personal injuries, fines or
penalties arising out of, based on or resulting from (A) the presence, or
release into the environment, of any Hazardous Material at any location, whether
or not owned by such person, or (B) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any
Governmental Authority for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and any
claim by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
1.7 "Environmental Law" means any law, regulation or order relating
to the regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of Hazardous Materials
into the environment (including without limitation ambient air, soil, surface
water, ground water, wetlands, land or subsurface strata), or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
2
1.8 "Gold Ranch RV Resort" means the recreational vehicle park
operated by Gold Ranch RV Resort, L.L.C., on the RV Park Property,
1.9 "Gold Ranch RV Resort Management Agreement" means the agreement
executed contemporaneously herewith by Last Chance and Gold Ranch RV Resort,
L.L.C., for the management by Last Chance of the Gold Ranch RV Resort.
1.10 "Governmental Authority" shall mean any federal, state,
regional, county or municipal governmental agency, board, commission, officer or
official having or exercising or purporting to have or exercise jurisdiction
over the RV Park Property.
1.11 "Hazardous Materials" includes (A) any "hazardous substance," as
defined by CERCLA or any other similar substance or waste regulated pursuant to
any similar state or local law, regulation or ordinance; (B) any "waste" or
"hazardous waste," as defined by the Resource Conservation and Recovery Act, as
amended, or any other similar substance or waste regulated pursuant to any
similar state or local law, regulation or ordinance; (C) any pollutant,
contaminant, material, substance or waste regulated by the Clean Water Act, as
amended, or any other similar substance or waste regulated pursuant to any
similar state or local law, regulation or ordinance; (D) any pollutant,
contaminant, material, substance or waste regulated by the Clean Air Act, as
amended, or any other similar substance or waste regulated pursuant to any
similar state or local law, regulation or ordinance; (E) any petroleum product;
(F) any polychlorinated biphenyls; or (G) any radioactive material or
substances.
1.12 "Integral Properties and Assets" means all of the assets, real
and personal, tangible and intangible which constitute integral parts of the
businesses operated by Prospector Gaming Enterprises, Inc., and its Affiliates,
as the Gold Ranch Casino & RV Resort as more particularly described in the Asset
Purchase Agreement.
1.13 "Integrated Agreements" means this Agreement and each of the
agreements and documents described as a component of that term in the Asset
Purchase Agreement, which constitute integral parts of the single transaction by
which Last Chance, Inc., will acquire the businesses and assets (real, personal,
tangible and intangible) operated by Prospector Gaming Enterprises, Inc. and its
Affiliates, as the Gold Ranch Casino & RV Resort.
1.14 "Option Assets" means the RV Park Property and all improvements,
furniture, fixtures and equipment located thereon and owned by PGE at the
exercise by Last Chance of its option to purchase or right of first refusal
under this Agreement.
3
1.15 "Person" means an individual, firm, corporation, trust,
association, partnership, joint venture, tribunal or other entity.
1.16 "Release" means release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any real or personal
property or any fixture, including the movement of Hazardous Materials through
or in the air, soil, surface water or groundwater.
1.17 "RV Park Lease" means the lease of the RV Park Property by and
between Prospector Gaming Enterprises, Inc., and Gold Ranch RV Resort, L.L.C.
dated January 1, 2001.
1.18 "RV Park Property" means the real property described in Exhibit
1 (APN ▇▇▇-▇▇▇-▇▇ and APN 023-100-13) which the Gold Ranch RV Resort is located.
2. OPTION TO PURCHASE. PGE hereby grants to Last Chance the exclusive
option, right and privilege to purchase the Option Assets at their fair market
value on the date of exercise of the option at any time after the 18th
anniversary of the Closing and prior to the expiration of the term of this
Agreement as provided in Section 4. The option must be exercised, if at all, as
to all of the Option Assets and simultaneously as to all option agreements
contained in the Integrated Agreements.
2.1 Notice of Exercise of Option. Last Chance shall exercise the
option by written notice thereof to PGE (Notice of Exercise). Upon receipt of
the Notice of Exercise by PGE, the parties shall open an escrow with the title
company selected by PGE under Section 2.5.
2.2 Determination of Fair Market Value. The fair market value of the
Option Assets shall be determined by (1) an agreement between the parties, (2)
an appraiser selected by agreement between the parties or, (3) if the parties
cannot agree on an appraiser, then the fair market value of the Option Assets
shall be determined by three appraisers, one of whom shall be selected by the
Owner, one of whom shall be selected by the Last Chance, and one of whom shall
be selected by the two appraisers so selected. Each of the selected appraisers
shall have substantial experience in appraising recreational vehicle park
property and improvements similarly situated to the Option Assets. The fair
market value of the Option Assets shall be the value agreed on by any two of the
three appraisers, and if no two of the three appraisers can agree on the fair
market value, then the fair market value shall be the mean average of the
appraised values determined by each of the three appraisers. In the event that
Last Chance has paid or assumed full responsibility for assessments by any
Governmental Agency for the installation of public water and/or sewer service to
4
the Option Assets, the Option Assets shall be appraised as if Water Service and
Sewer Service were still being provided thereto under and pursuant to the Water
and Sewer Service Agreement in order to avoid increases in fair market value
attributable to such expenditures by Last Chance. All appraisal costs shall be
paid in equal shares by Last Chance and PGE. If Last Chance elects to exercise
its option to purchase the Option Assets as described herein, PGE and Last
Chance shall execute such documents and instruments and make such deliveries as
may be reasonably required to consummate such purchase.
2.3 Payment of Purchase Price. The purchase price shall be paid on
terms mutually agreeable to the PGE and Last Chance, however, if the parties
cannot reach an agreement on payment of the purchase price, Last Chance shall
either pay cash or obtain its own third party financing.
2.4 Title. PGE shall convey good and marketable title to the Option
Assets to Last Chance free and clear of all liens, claims and encumbrances of
any kind whatever, all other defects in title and any Environmental Claims,
except for those caused, permitted or suffered by Last Chance or approved by
Last Chance as provided in Section 2.5. The real property portion of the Option
Assets shall be conveyed to Last Chance by grant, bargain and sale deed and any
personal property shall be transferred by ▇▇▇▇ of sale. In either case, the
grantor or transferor shall warrant that title is conveyed free and clear of all
liens, claims and encumbrances of any kind whatever, all other defects in title
and any Environmental Claims, with any exceptions for those caused, permitted or
suffered by Last Chance being set forth in detail reasonably sufficient for
identification.
2.5 Approval of Conditions of Title.
(A) Within fifteen (15) days following the receipt by PGE of
the Notice of Exercise, PGE shall deliver to Last Chance, at PGE 's sole cost
and expense: (i) a CLTA preliminary title report for the Option Assets issued by
a reputable title company, and (ii) the results of a search conducted of the
public records of the State of Nevada and Washoe County, Nevada, and the State
of California and Sierra County, California, for personal property security
interests and liens by the public officials responsible for such records,
together with full and complete copies of all documents referenced in the title
report and the results of such searches, and (iii) copies of all liens, claims,
encumbrances and financing statements affecting the Option Assets and not
otherwise produced by PGE pursuant to Section 2.5(A)(i) or (ii). Any obligation
of Last Chance to purchase the Option Assets upon its election to exercise the
option is contingent on Last Chance's approval of the condition of title
thereto. Last Chance shall have thirty (30) business days following its receipt
of all of the materials required by Section 2.5(A)(i), (ii) and (iii), within
which to give written notice to PGE of Last Chance's objections to the condition
of title to the Option Assets (Title Defects).
5
(B) Last Chance's notice of objection shall either state
that: (i) Last Chance elects to revoke its exercise of the option and to cancel
the escrow established following the Notice of Exercise, or (ii) that PGE shall
have until the close of escrow to remove the Title Defects at its expense. If
PGE does not remove all of the Title Defects, Last Chance shall notify PGE that:
(iii) Last Chance elects to revoke its exercise of the option and to cancel the
escrow established following the Notice of Exercise, or (vi) the Title Defects
or one or more of them are waived and shall constitute Permitted Exceptions, or
(v) that Last Chance will cure any remaining Title Defect(s) and deduct the cost
thereof from the Purchase Price, or (vi) that Last Chance will seek specific
performance of PGE 's agreement to convey title to the Option Assets in the
condition provided in Section 2.4.
(C) All matters shown in the materials produced pursuant to
Section 2.5 (A)(i), (ii) and (iii), which are not objected to by Last Chance,
shall be deemed to be Permitted Exceptions.
3. RIGHT OF FIRST REFUSAL. In the event that PGE receives an
arms-length, good faith, bona fide offer from a third party to purchase the
Option Assets, or a controlling interest in PGE (Controlling Interest), during
the Term of this Agreement, or any extension thereof, Last Chance shall have the
right of first refusal to meet any such offer on terms and conditions identical
thereto and in accordance with the provisions of this Section 3. For the
purposes of this Section 3, the term "Controlling Interest" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of the business and affairs of PGE by
reason of the ownership of voting securities or beneficial interests, by
contract or otherwise, excluding, however, transfers to a legal entity owned and
controlled by ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ which agrees in writing satisfactory to
Last Chance to be bound by this Agreement. PGE agrees that it will not sell,
transfer or dispose of any of the Option Assets separately and acknowledges that
the right of sale, transfer or disposition hereby reserved is limited to a sale,
transfer or disposition of all of the Option Assets, in toto, in a single
transaction. In the event that Last Chance exercises its right of first refusal
but a purchase is not consummated, for any reason, this Section 3 and the rights
and obligations of the parties thereunder, shall survive.
3.1 Notice. Within ten (10) days following its receipt of an offer
to purchase the Option Assets or a Controlling Interest, PGE shall deliver a
written notice (Notice) to Last Chance stating: (A) PGE 's bona fide intention
to sell the Option Assets or the Controlling Interest, (B) the name and address
of the proposed purchaser, (C) the date of the proposed sale, (D) copies of any
drafted documents evidencing the proposed transaction, including letters of
intent, and (E) the purchase price and terms for or upon which PGE propose to
sell the Option Assets or Controlling Interest.
6
3.2 Exercise. Within thirty (30) days following receipt of the
Notice Last Chance shall have the right, but not the obligation, to elect to
purchase the Option Assets or the Controlling Interest for the price and upon
the terms set forth in the Notice subject, however, to Section 3.3 in the event
that the third party offer includes non-cash consideration. Within thirty (30)
days following receipt of the Notice, Last Chance shall notify PGE in writing of
its election to exercise the right of first refusal granted by this Section 3
(Notice of Election). The failure of Last Chance to give a timely Notice of
Election shall constitute an election by Last Chance not to exercise. In the
event that Last Chance elects to exercise its right of first refusal, PGE and
Last Chance shall execute such documents and instruments and make such
deliveries as may be reasonably required to consummate such purchase and sale.
3.3 Non-Cash Consideration. If the Notice provides for the payment
of non-cash consideration, Last Chance may elect to provide the non-cash
consideration or to pay cash in lieu of the non-cash consideration in an amount
equal to the good faith estimate of the present fair market value of the
non-cash consideration offered as determined by an independent appraiser of Last
Chance's choice. Notwithstanding the date specified in the Notice for the
closing of the proposed sale, in the event that Last Chance elects to provide
the non-cash consideration, it shall have until close of business on the later
of (A) forth-five (45) days from the date of receipt of the Notice of Election
by PGE, or (B) the date specified in the Notice for the closing of the sale,
within which to provide such non-cash consideration.
3.4 Non-exercise. If Last Chance elects or is deemed to have elected
not to exercise its right of first refusal or, having exercised that right, a
purchase of the Option Assets or Controlling Interest is not consummated, PGE
may (A) seek specific performance of the election by Last Chance to exercise its
right of first refusal, or (B) sell or transfer the Option Assets or Controlling
Interest to the proposed purchaser, providing that such transfer or sale is: (i)
completed within the period provided in the Notice or if none is provided,
within one (1) year after the expiration of Last Chance's right of first
refusal, (ii) made on terms identical to those specified in the Notice, (iii)
the transferee takes, and acknowledges in writing that it takes title to the
Option Assets or the Controlling Interest subject to Last Chance's rights under
this Agreement, specifically including, without limitation, the rights of Last
Chance under Sections 2 and 3 of this Agreement and the Integrated Agreements,
and (iv) all deeds and other documents by which the Option Assets or the
Controlling Interest are conveyed recite that title thereto is taken subject to
the rights of Last Chance under Sections 2 and 3 of this Agreement and the other
Integrated Agreements (with specific reference to all pertinent recording
information) and that the grantee, transferee or assignee, as the case may be,
is bound thereby. If a sale of the Option Assets or Controlling Interest as
herein provided is not consummated, PGE must give notice anew in accordance with
Section 3.1 prior to any other sale of the Option Assets or a Controlling
Interest. Any sale or transfer in violation of Section 3 shall be
7
voidable by Last Chance, in its absolute discretion. In the event that Last
Chance elects to void a sale or transfer under this Section 3.4, PGE shall, at
its sole cost and expense, indemnify, protect and defend Last Chance (including
costs and attorneys' fees incurred by Last Chance) from and against the claims
of any such transferee and shall, upon demand by Last Chance, take such actions
as may be necessary, including the commencement of an action to quiet title to
the Option Assets or any portion thereof as may have been transferred in
violation of this Section 3, as may be necessary to free the Option Assets or
the Controlling Interest of any claim or encumbrance other than the rights of
Last Chance under this Agreement.
4. TERM. The Term of this Agreement shall commence on the Closing and shall
continue so long as any of the Integrated Agreements remain in force and effect.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of PGE. Except as provided in
Exhibit 2, PGE represents and warrants to Last Chance that each of the following
representations and warranties are true and correct as of the date hereof and,
except as otherwise expressly provided herein, will be true and correct on the
Closing and the close of escrow in the event of a purchase of the Option Assets
by Last Chance pursuant to Sections 2 or 3 of this Agreement.
(A) Organization. PGE is a corporation validly existing and
in good standing under the laws of the State of Nevada and every other
jurisdiction in which it does business, owns property or has employees and has
all requisite power and authority to own the Option Assets and to grant the
option to purchase and right of first refusal as provided in Sections 3 and 4 of
this Agreement.
(B) Articles, By Laws. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, conflict with the terms and provisions of the Articles of
Incorporation or By Laws of PGE.
(C) Proper Authority and Action, Binding Obligation. PGE has
had since its formation, does have currently, and will have at the Closing and
the closing of any transaction under Sections 2 and 3, all necessary
registrations, licenses, filings, permits, exemptions, certificates, approvals,
and other authorizations required of it by any Governmental Authority, to own,
use, operate and lease the Option Assets, at the places and in the manner in
which the Option Assets have been and are being owned, used, operated and
leased. PGE has taken all action necessary under its organizational documents
and applicable corporate laws, to authorize the execution and delivery of this
Agreement and the performance of its obligations thereunder and has duly
executed and delivered
8
this Agreement. The Agreement is the valid and binding obligation of PGE,
enforceable against it in accordance with its terms.
(D) Ownership, Authority and Compliance. PGE represents and
warrants that it is the legal owner of the Option Assets; that this Agreement
does not violate any contractual obligations with any third party, including
recorded documents such as deeds of trust or mortgages, or violate or contravene
any law, governmental rule, regulation, order, writ, injunction or decree
applicable to PGE, that there are no consents necessary from any person,
association, entity, or Governmental Authority necessary to render this
Agreement lawful, or effective in accordance with its terms, and that PGE is in
compliance with all federal, state and local laws, rules and regulations
applicable to the Option Assets.
(E) Want of Notice. PGE has not received any notice from any
Governmental Authority: (i) requiring it to make any material repairs or changes
to any of the Option Assets which have not been made, or (ii) giving notice of
any material governmental actions pending or threatened relating to any of the
Option Assets. All of the Option Assets are in material compliance with
applicable laws, regulations and ordinances and, to the best of PGE's knowledge,
all current building and health codes to the extent applicable. PGE has not
received any notice of any material violation of any law, regulation, ordinance
or building or health code with respect to the Option Assets.
(F) Licenses and Permits. PGE represents and warrants that
it holds all licenses and permits necessary to its ownership and use of the
Option Assets and is in compliance with all such licenses and permits.
(G) Condition and Compliance. PGE warrants and represents
that all of the Option Assets: (A) comply with, and are operated in accordance
with, all material applicable laws, (B) that the Option Assets are in good
operating condition and repair, free from latent and patent defects and adequate
for the uses to which they are being put, and (C) that none of the Option Assets
is in need of maintenance or repair, except for ordinary, routine maintenance
and repairs that are not material in nature or cost.
(H) Environmental Matters.
(i) PGE represents and warrants that, except as
provided in Exhibit 2, the Option Assets have at all times been, and continue to
be, used and operated in material compliance with all Environmental Laws;
(ii) Except as provided in Exhibit 2, there have been
no past, and there are no pending or threatened: (a) Environmental Claims,
complaints, notices, requests for information or investigations with respect to
any alleged material violation of any Environmental Law by PGE, or (b)
complaints,
9
notices or inquiries to or investigations of Gold Ranch RV Resort, L.L.C. or PGE
regarding potential liability under any Environmental Law;
(iii) Except as provided in Section 5.1(H)(vi), there
have not been, at or on any of the Option Assets any Releases of Hazardous
Materials and there are no citations, notices or orders of noncompliance issued
and outstanding to PGE or Gold Ranch RV Resort, L.L.C. under any Environmental
Law;
(iv) PGE is the holder of and is in material
compliance with all permits, certificates, approvals, licenses and other
governmental authorizations relating to environmental matters and necessary for
the ownership, operation, lease and use of the Option Assets, and no order has
been issued, no Environmental Claim has been made, no penalty has been assessed
and no investigation or review has occurred or is pending or threatened, by any
Governmental Authority or any Person with respect to any alleged failure by
either PGE or Gold Ranch RV Resort, L.L.C. to have any license or permit
required under applicable Environmental Laws in connection with the use of the
Option Assets or to comply with any Environmental Laws or with respect to any
generation, treatment, storage, recycling, transportation, discharge, disposal
or release of any Hazardous Material generated or Released by them;
(v) PGE warrants that, except as provided in Exhibit
2 and Section 5.1(H)(vi), no condition exists with respect to the Option Assets
that would represent an environmental liability to Last Chance, and that if such
a condition does exist, that PGE shall indemnify, defend, and hold harmless,
Last Chance for any losses associated with such liability, including, but not
limited to, any and all claims, judgments, damages, penalties, fines, costs,
liabilities or other losses, sums paid in settlement of claims, attorney fees,
consultant fees and expert fees.
(vi) PGE acknowledges that a petroleum Release from
an underground storage tank on the Gold Ranch Casino Property was discovered in
1995. That Release resulted in the contamination of the well(s) (Permit ▇▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇; Certificate No. 12799 and Certificate No. 12801)
located inside the Casino building. Subsequent examination and characterization
led PGE to cease using these ▇▇▇▇▇ and to install numerous monitoring ▇▇▇▇▇,
ground water recovery ▇▇▇▇▇, soil vapor extraction points, and a treatment
system, which continue to operate. It is expected that remediation will be
concluded within twelve (12) months following the Closing. PGE shall indemnify
Last Chance from and against liability for this Release to the extent provided
in Section 4(g)(vi) of the Asset Purchase Agreement.
(I) Full and Accurate Disclosure, Reliance. No statement of
fact made by PGE in this Agreement contains any untrue statement of a material
fact or omits to state any material fact necessary to make statements contained
10
herein not misleading in all material respects. There is no material fact
presently known to PGE which has not been disclosed to Last Chance which
adversely affects, nor as far as PGE foresee, would reasonably be expected to
have a material adverse effect upon the Option Assets or Last Chance's
willingness to enter into this Agreement. All representations, warranties,
covenants and agreements made in this Agreement by PGE shall be deemed to have
been relied upon by Last Chance notwithstanding any investigation made by Last
Chance or on its behalf.
(J) No Material Adverse Change. Since June 30, 2001, there
has not been any material adverse change in the Option Assets or the results of
operation thereof (financial or otherwise), including customer or employee or
supplier relations or relations with any Governmental Authority.
5.2 Representations and Warranties of Last Chance. Last Chance
represents and warrants to PGE that each of the following representations and
warranties are true and correct as of the date hereof and, except as otherwise
expressly provided herein, will be true and correct on and as of the Closing and
the close of escrow in the event of a purchase of the Option Assets by Last
Chance as provided for in Sections 2 or 3.
(A) Organization. Last Chance is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and every other jurisdiction in which the Last Chance does business, owns
property or has employees, and has all requisite power and authority to acquire
the rights granted or created by this Agreement.
(B) Articles and By Laws. The execution and delivery of this
Agreement does not, and the consummation of the transaction contemplated hereby
will not, conflict with the terms and provisions of the Articles of
Incorporation or the By Laws of Last Chance.
(C) Proper Authority and Action, Binding Obligation. Last
Chance has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations thereunder. Last Chance has taken all
action necessary under its organizational documents and applicable corporate law
to authorize the execution and delivery of this Agreement and the performance of
its obligations thereunder and has duly executed and delivered this Agreement.
The Agreement is the valid and binding obligation of Last Chance, enforceable
against Last Chance in accordance with its terms. Neither this Agreement nor
Last Chance's performance of its obligations thereunder, will violate any
contractual obligations with any third party or contravene any law, governmental
rule, regulation, order, writ, injunction or decree applicable to Last Chance.
11
6. MISCELLANEOUS PROVISIONS.
6.1. Covenants and Conditions. All of the terms and conditions of
this Agreement are expressly intended to be construed as covenants as well as
conditions.
6.2. Notice. Whenever under this Agreement a provision is made for
any demand, notice or declaration of any kind, or whether it is deemed advisable
or necessary by either party to give or serve any such notice, demand or
declaration to the other party, the notice shall be in writing and served either
personally or sent by certified or registered mail, return receipt requested,
postage prepaid, addressed to addresses set forth below:
To PGE: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Prospector Gaming Enterprises, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Lemons, Grundy & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
To Last Chance: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Last Chance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
The Sands Regent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇ ▇. Bible, Esq.
Bible, Hoy & Trachok
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
6.3 Parties Bound; Assignment. This Agreement shall be binding on
and inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, provided, however, that this agreement may
not be assigned by Last Chance without the prior written consent of PGE or by
12
PGE without the prior written consent of Last Chance, which consent, by either
party, shall not be unreasonably withheld or delayed.
6.4 Effect of Partial Invalidity. Should any section or any part of
any section of this Agreement be rendered void, invalid or unenforceable for any
reason by any court of law exercising competent jurisdiction, such a
determination shall not render void, invalid or unenforceable any other section
or any part of any section in this agreement.
6.5 Choice of Law and Venue . This Agreement shall be interpreted,
governed and controlled by the laws of the State of Nevada and venue for any
litigation arising out of or related to this Agreement shall be in Washoe
County, Nevada.
6.6 Attorney's Fees. In the event a party must retain an attorney to
enforce this Agreement or in the event of litigation which arises as a result of
any controversy, dispute, breach or construction of this Agreement, the
prevailing party shall be entitled to recover, from the other party, all costs,
expenses and reasonable attorney's fees incurred in connection with the
enforcement efforts or litigation.
6.7 Modification. This agreement may not be modified unless such
modification is in writing and signed by both parties to this Agreement.
6.8 Headings. The headings of this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
6.9 Waivers. No waiver by any party hereto of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by the respective party of the same or any other provision. Any party's
consent to or approval of any act shall not be deemed to render unnecessary the
obtaining of that party's consent to or approval of any subsequent act by the
breaching party.
6.10 Recording. The parties hereto shall execute a memorandum of
option to purchase and right of first refusal in recordable form and either
party may record the memorandum.
6.11 Approvals. This Agreement shall be contingent upon Last Chance
receiving any and all required government approvals. In the event that the Last
Chance is unable to secure the required approvals, this Agreement shall
terminate with no damages claimed by any party against the other.
13
6.12 Additional Documents. The parties hereto agree to execute any
additional documents, as may be reasonable and necessary to carry out the
provisions of this Agreement.
6.13 No Construction Against Drafting Party. This Agreement is not
being offered on a take-it-or-leave-it basis. Each party has been given an
opportunity to negotiate each term, propose new language or edits to existing
language, and has been given an opportunity to have the Agreement reviewed by an
independent attorney. This Agreement is a joint product of all parties and not
one party. Therefore, the rule of construction that an ambiguous contract should
be construed against the drafting party shall not apply to this Agreement.
6.14 Expenses. Each party shall pay its own attorneys' fees incurred
to document or negotiate this Agreement.
6.15 Covenant Running With Land. All of the covenants, conditions,
and terms of this Agreement shall (i) be of benefit to the parties, (ii)
constitute a covenant running with the Option Assets, and (iii) bind and inure
to the benefit of the Parties and any Person acquiring any interest in the
Option Assets.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Prospector Gaming Enterprises, Inc., Last Chance, Inc.
a Nevada corporation a Nevada corporation.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇▇▇▇▇
Its: President Its: Pres/CEO
15
State of Nevada )
) ss.
County of Washoe )
This instrument was acknowledged before me on the 27th day of December,
2001, by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the President of Prospector Gaming Enterprises, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
Notary Public
State of Nevada )
) ss.
County of Washoe )
This instrument was acknowledged before me on the 27th day of December,
2001, by ▇▇▇▇▇▇ ▇▇▇▇▇, the President/CEO of Last Chance, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
Notary Public
16