Common use of Non-Exercise Clause in Contracts

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 is not consummated due to the fault of Last Chance, PGE and Target may (A) seek specific performance of the election by Last Chance to exercise its right of first refusal, or (B) sell the Option Assets to the proposed purchaser, provided that such sale is: (i) completed within the time specified in the Notice and if none is specified, 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 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 are conveyed or transferred 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 of the Option Assets, as the case may be, is bound thereby. If a sale of the Option Assets as herein provided is not consummated, PGE and Target must give notice anew in accordance with Section 3.1 prior to any other sale of the Option Assets. Any sale or transfer in violation of Section 3 shall be 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 and Target shall, jointly and severally and at their 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 Section 3, to free the Option Assets of any claim or encumbrance other than the rights of Last Chance under this Agreement.

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 is not consummated due to Gaming Proponent may proceed with the fault of Last Chance, PGE and Target may (A) seek specific performance of the election by Last Chance to exercise its right of first refusal, or (B) sell the Option Assets to the proposed purchaser, provided that such sale isGaming Enterprise providing that: (i) completed the Gaming Enterprise commences within the time specified period provided in the Notice and or if none is specifiedprovided, within one eighteen (118) year months after the expiration of Last Chance’s right of first refusal, (ii) made is conducted 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 Restricted Properties subject to Last Chance’s rights under this AgreementLease, specifically including, without limitation, the rights of Last Chance under Sections 2 and 3 Section 8.1(L) of this Agreement, Lease and the Integrated Agreements, and (iv) all deeds and other documents by which the Option Assets Restricted Properties are conveyed or transferred recite that title thereto is taken subject to the rights of Last Chance under Sections 2 and 3 Section 8.1(L) of this Agreement, Lease and the other Integrated Agreements (with specific reference to all pertinent recording information) and that the grantee, lessee, transferee or assignee of the Option Assetsassignee, as the case may be, is bound thereby. If a sale of the Option Assets as herein provided Gaming Enterprise is not consummated, PGE and Target the Gaming Proponent giving the Notice, or the successors thereto, must give notice anew in accordance with Section 3.1 8.1(L)(b) prior to engaging in any other sale of the Option Assets. Any sale or transfer in violation of Section 3 shall be voidable by Last Chance, in its absolute discretionsubsequent Gaming Enterprise. In the event that a Gaming Enterprise is threatened or commenced on any of the Restricted Properties, Landlord and its Affiliates, shall, upon demand by Last Chance elects to void a sale or transfer under this Section 3.4, PGE and Target shall, jointly and severally and at their the sole cost and expenseexpense of Landlord and its Affiliates, take such actions as may be necessary to protect the rights of Last Chance hereunder, including actions for injunctive relief and damages, and 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 Section 3, to free the Option Assets of any claim or encumbrance other than the rights of Last Chance under this AgreementGaming Proponent.

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 is not consummated due to Gaming Proponent may proceed with the fault of Last Chance, PGE and Target may (A) seek specific performance of the election by Last Chance to exercise its right of first refusal, or (B) sell the Option Assets to the proposed purchaser, provided that such sale isGaming Enterprise providing that: (i) completed the Gaming Enterprise commences within the time specified period provided in the Notice and or if none is specifiedprovided, within one eighteen (118) year months after the expiration of Last Chance’s 's right of first refusal, (ii) made is conducted 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 Restricted Properties subject to Last Chance’s 's rights under this AgreementLease, specifically including, without limitation, the rights of Last Chance under Sections 2 and 3 Section 8.1(L) of this Agreement, Lease and the Integrated Agreements, and (iv) all deeds and other documents by which the Option Assets Restricted Properties are conveyed or transferred recite that title thereto is taken subject to the rights of Last Chance under Sections 2 and 3 Section 8.1(L) of this Agreement, Lease and the other Integrated Agreements (with specific reference to all pertinent recording information) and that the grantee, lessee, transferee or assignee of the Option Assetsassignee, as the case may be, is bound thereby. If a sale of the Option Assets as herein provided Gaming Enterprise is not consummated, PGE and Target the Gaming Proponent giving the Notice, or the successors thereto, must give notice anew in accordance with Section 3.1 8.1(L)(b) prior to engaging in any other sale of the Option Assets. Any sale or transfer in violation of Section 3 shall be voidable by Last Chance, in its absolute discretionsubsequent Gaming Enterprise. In the event that a Gaming Enterprise is threatened or commenced on any of the Restricted Properties, Landlord and its Affiliates, shall, upon demand by Last Chance elects to void a sale or transfer under this Section 3.4, PGE and Target shall, jointly and severally and at their the sole cost and expenseexpense of Landlord and its Affiliates, take such actions as may be necessary to protect the rights of Last Chance hereunder, including actions for injunctive relief and damages, and 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 Section 3, to free the Option Assets of any claim or encumbrance other than the rights of Last Chance under this AgreementGaming Proponent.