EXHIBIT 10.4
OPTION TO PURCHASE ALL ASSETS OF GOLD RANCH RV RESORT
BUSINESS AND RIGHT OF FIRST REFUSAL
BETWEEN
GOLD RANCH R.V. RESORT, LLC,
A Nevada Limited Liability Company
AND
LAST CHANCE, INC.,
A Nevada Corporation
OPTION TO PURCHASE ALL ASSETS OF GOLD RANCH RV RESORT
BUSINESS AND RIGHT OF FIRST REFUSAL
This Option to Purchase All Assets of Gold Ranch RV Resort Business and
Right of First Refusal ("Agreement") is made this 27th day of December, 2001, by
and between Gold Ranch R.V. Resort, LLC, a Nevada limited liability company
(Owner) 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. Owner leases the RV Park Property from Prospector Gaming Enterprises,
Inc. (PGE), under and pursuant to the RV Park Lease and operates the Gold Ranch
RV Resort on the RV Park Property;
C. Owner and Last Chance are parties to the RV Resort Management
Agreement pursuant to which Last Chance will, at the Closing, assume
responsibility for the management and operation of the Gold Ranch RV Resort; and
D. 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 and, in accordance therewith, Owner desires to
grant to Last Chance an option to purchase the business, FF&E, goodwill and
other intangibles associated with the business of the Gold Ranch RV Resort, and
a right of first refusal with respect thereto, and Last Chance desires to
acquire such option to purchase and right of first refusal.
NOW WHEREFORE, in consideration of the foregoing Recitals, the mutual
considerations, 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 Owner and Last
Chance 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 Owner or partnership or other ownership interests,
by contract or otherwise.
1.2 "Assets" means the business, goodwill, FF&E and all other tangible
and intangible assets of the Gold Ranch RV Resort, as set forth in Exhibit 1
together with all additions thereto and substitutions or replacements therefor
owned by Owner at the time of exercise by Last Chance of the option to purchase
under Section 2 or right of first refusal under Section 3.
1.3 "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.
1.4 "CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
1.5 "Closing" means the completion of the transaction contemplated by
the Integrated Agreements on the Closing Date.
1.6 "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.
1.7 "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.
1.8 "Environmental Law" means any law, regulation or order relating to
the regulation or protection of human health, safety or the environment or to
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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.
1.9 "FF&E" means all furniture, fixtures and equipment located in, on or
about the Gold Ranch RV Resort and used in conjunction with the operation of the
Gold Ranch RV Resort as set forth in Exhibit 1.
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
Assets or the parties with respect to the Assets.
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 "Integrated Agreements" means this Agreement and each of the
agreements and documents described as a component of that term in Section 1 of
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.
1.13 "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,
including Owner, as the Gold Ranch Casino & RV Resort as more particularly
described in Section 1 of the Asset Purchase Agreement.
1.14 "Gold Ranch RV Resort" means the recreational vehicle park operated
by Owner, on the RV Park Property, together with all improvements and furniture,
fixtures and equipment used in conjunction therewith.
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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, 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 Owner and Prospector Gaming Enterprises, Inc., dated January 1, 2000.
1.18 "RV Park Management Agreement" means the agreement executed by and
between Owner and Last Chance as part of the Integrated Agreements for the
management of the Gold Ranch RV Resort by Last Chance.
1.19 "RV Park Property" means the real property described in Exhibit 2
(APN 000-000-00 and APN023-100-13) upon which the Gold Ranch RV Resort is
located.
2. OPTION TO PURCHASE ASSETS. Owner hereby grants to Last Chance the
exclusive option, right and privilege to purchase the Assets for the total sum
of One Dollar ($1.00) 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. Last Chance shall exercise the option by written notice thereof to
Owner (Notice of Exercise) within said period. Upon receipt of the Notice of
Exercise by Owner, the parties shall open an escrow with the title company
selected by Owner under Section 2.3.
2.1 Payment of Purchase Price. The purchase price shall be paid in cash.
2.2 Title. Owner shall convey good and marketable title to the Assets to
Last Chance free and clear of all liens, claims, encumbrances, security
interests or other third party rights and defects in title, and Environmental
Claims, except for those caused, permitted or suffered by Last Chance or
approved by Last Chance as provided in Section 2.3. The Assets shall be
transferred by xxxx of sale and Owner 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.
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2.3 Approval of Conditions of Title.
(A) Within fifteen (15) days following the receipt by Owner of
the Notice of Exercise, Owner shall deliver, at Owner's sole cost and expense:
(i) a CLTA preliminary title for the RV Park Property issued by one or more
reputable title companies, (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(s) and the results of such searches, and (iii) copies of all liens,
claims, encumbrances and financing statements affecting the Assets and not
otherwise produced by Owner pursuant to Section 2.3(A)(i) or (ii). Any
obligation of Last Chance to purchase the Assets upon its election to exercise
the option is contingent on approval by Last Chance 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 2.3(A)(i), (ii) and (iii) within
which to give written notice to Owner of Last Chance's objections to the
condition of title to the Assets (Title Defects).
(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 that (ii) Owner shall
have thirty (30) days, or such longer period as Last Chance may permit, to
remove the Title Defects at Owner's expense. If Owner does not remove all of the
Title Defects, Last Chance shall notify Owner that: (iii) Last Chance elects to
revoke its exercise of the option and to cancel the escrow established following
the Notice of Exercise, of (iv) 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 Defects and deduct the cost thereof from the Purchase
Price, or (vi) that Last Chance will seek specific performance of Owner's
agreement to convey title to the Assets in the condition provided in Section
2.2.
(C) All matters shown in the materials produced pursuant to
Section 2.3(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 Owner receives an arms-length,
good faith, bona fide offer from a third party to purchase the Assets 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. Owner agrees
that it will not sell, transfer or dispose of any of the Assets separately and
acknowledge that the right of sale, transfer or disposition hereby reserved is
limited to a sale, transfer or disposition of all of the Assets, in toto, in a
single transaction. In the event that Last Chance exercises its right of first
refusal but a
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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 Assets, Owner shall deliver a written notice (Notice) to Last
Chance stating: (A) Owner 's bona fide intention to sell the Assets, (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 Owner proposes to sell the Assets.
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 Assets for the price and/or 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 after the receipt of the Notice,
Last Chance shall notify Owner 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, Owner 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) forty-five (45) days from the date of receipt of the Notice of Election
by Owner, 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 Assets is not consummated due to the fault of Last Chance, Owner
may (A) seek specific performance of the election by Last Chance to exercise its
right of first refusal, or (B) sell the Assets to the proposed purchaser,
providing that such 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 Assets subject to Last Chance's rights under this Agreement,
specifically including,
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without limitation, the rights of Last Chance under Sections 2 and 3 of this
Agreement, and the Integrated Agreements, and (iv) all bills of sale and other
documents by which the Assets 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 of the
Assets, as the case may be, is bound thereby. If a sale of the Assets as herein
provided is not consummated, Owner must give notice anew in accordance with
Section 3.1 prior to any other sale of the 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 Owner 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 to recover the
Assets or any portion thereof as may have been transferred in violation of this
Section 3, as may be necessary to free the Assets of any claim or encumbrance
other than the rights of Last Chance under this Agreement, including the
commencement of an action to recover the Assets free and clear of third party
claims.
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 Owner. Except as set forth in
Exhibit 3, Owner 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
Assets by Last Chance pursuant to Sections 2 or 3 of this Agreement. The truth
and accuracy of the representations and warranties herein shall constitute a
condition to the Closing and shall survive the Closing.
(A) Organization. The Owner is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Nevada and every other jurisdiction in which the Owner does business or owns
property, and has all requisite power and authority to own the Assets and to
grant the option to purchase and right of first refusal as provided in Sections
2 and 3 of this Agreement.
(B) Articles, Operating Agreement. 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
Organization, as amended or Operating Agreement, of Owner.
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(C) Proper Authority and Action, Binding Obligation. Owner 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 them by any Governmental Authority, to own,
use and operate the Assets, at the places and in the manner in which the Assets
have been and are being owned, used, and operated. Owner has taken all action
necessary under its organizational documents and applicable limited liability
company laws, 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 Owner,
enforceable against Owner in accordance with its terms.
(D) Ownership and Compliance. Owner hereby represents and
warrants that it is the legal owner of the Assets, that this Agreement does not
violate any of Owner's contractual obligations with any third party, including
recorded documents such as deeds of trusts, or mortgages, or violate or
contravene any law, governmental rule, regulation, order, writ, injunction or
decree applicable to Owner or its officers, directors, managers, employees or
agents; that there are no consents necessary from any person, association,
entity, or Governmental Authority necessary to render the Agreement lawful, or
effective in accordance with its terms, and that the Owner is in compliance with
all federal, state and local, laws, rules, regulations and ordinances applicable
to the Assets.
(E) Want of Notice. Owner has not received any notice from any
Governmental Authority: (i) requiring Owner to make any material repairs or
changes to any of the Assets which have not been made, or (ii) giving notice of
any material governmental actions pending or threatened relating to any of the
Assets. All of the Assets are in material compliance with applicable laws,
regulations and ordinances and, to the best of Owner's knowledge, all current
building and health codes to the extent applicable. Owner has not received any
notice of any material violations of any laws, regulations, ordinances or
building or health codes with respect to the Assets.
(F) Licenses and Permits. Owner represents and warrants that it
holds all licenses and permits necessary to its ownership, operation and use of
the Assets and is in compliance with all such licenses and permits.
(G) Condition and Compliance. Owner warrants and represents that
all of the Assets: (i) comply with, and are operated in accordance with, all
material applicable laws, (ii) that the 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 (iii) that none of the Assets is in need of
maintenance or repair, except for ordinary, routine maintenance and repairs that
are not material in nature or cost.
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(H) Environmental Matters.
(i) Owner represents and warrants that, except as provided
in Exhibit 3, the Assets have all times been, and continue to be, used and
operated in material compliance with all Environmental Laws;
(ii) Except as provided in Exhibit 3, 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 Owner, or (b)
complaints, notices or inquiries to or investigations of Owner 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 Assets any Releases of Hazardous Materials and
there are no citations, notices or orders of noncompliance issued and
outstanding to Owner under any Environmental Law;
(iv) Owner 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 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
Owner to have any license or permit required under applicable Environmental Laws
in connection with the use of the 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) Owner warrants that, except as provided in Exhibit 3
and Section 5.1(H)(vi), no condition exists with respect to the Assets that
would represent an environmental liability to the Last Chance, and that if such
a condition does exist, that Owner 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) Owner 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 Xx.
00000 xxx Xxxxxx Xx. 00000; Certificate No. 12799 and Certificate No. 12801)
located inside the Casino building. Subsequent examination and
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characterization led PGE to cease using these xxxxx and to install numerous
monitoring xxxxx, ground water recovery xxxxx, 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. Owner 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) Litigation. No litigation, proceeding, investigation or claim
of any kind whatsoever is pending or threatened, by, against or relating to the
Owner, or the Assets. No claim or liability can, on the basis of the Owner's, or
its employees' or agents' actions, or of facts or conditions existing prior to
the Closing Date, be asserted against the Owner, or the Assets by any
individual, entity, association or governmental authority, except as described
in detail in Exhibit 3, all of which shall remain the responsibility of Owner.
(J) Full and Accurate Disclosure, Reliance. No statement of fact
made by Owner in this Agreement contains any untrue statement of a material fact
or omits to state any material fact necessary to make statements contained
herein not misleading in all material respects. There is no material fact
presently known to Owner which has not been disclosed to Last Chance which
adversely affects, nor as far as Owner can foresee, would reasonably be expected
to have a material adverse effect upon the Assets or Last Chance's willingness
to enter into this Agreement. All representations, warranties, covenants and
agreements made in this Agreement by Owner shall be deemed to have been relied
upon by Last Chance notwithstanding any investigation made by Last Chance or on
its behalf.
(K) No Material Adverse Change. Since June 30, 2001, there has
not been any material adverse change in the 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 Last Chance's Representations and Warranties. Last Chance represents
and warrants to Owner 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 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.
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(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 the Last Chance.
(C) Proper Authority and Action, Binding Obligation. The 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 the 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.
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 Owner: Xxxxx Xxxxxxxx, Managing Member
Gold Ranch R.V. Resort, LLC
0000 X. Xxxxxxxx
Xxxx, Xxxxxx 00000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Lemons, Grundy & Xxxxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
To Last Chance at: Xxxxxx X. Xxxxx, President
Last Chance, Inc.
000 Xxxxxxxxx Xxx.
Xxxx, Xxxxxx 00000
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With a copy to: Xxxxx X. Xxxx, Treasurer
The Sands Regent
000 Xxxxxxxxx Xxx.
Xxxx, Xxxxxx 00000; and
Xxxx X. Bible, Esq.
Bible, Hoy & Trachok
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxx, Xxxxxx 00000.
6.3 Parties Bound; Assignment. This Agreement shall be binding on and
inure to the benefit of the successors and assigns of the parties hereto, and
their respective successors and assigns; provided, however, that this agreement
may not be assigned by Last Chance without prior written consent of Owner, or by
Owner without prior written consent of Last Chance, which consent, by any 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
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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
and right of first refusal in recordable form which may be recorded by either of
them.
6.11 Approvals. This Agreement shall be contingent upon Last Chance
receiving any and all required government approvals. In the event that Last
Chance is unable to secure the required approvals, this Agreement shall
terminate with no damages claimed by any party against the other.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
OWNER LAST CHANCE
Gold Ranch R.V. Resort, LLC Last Chance, Inc.
a Nevada limited liability company a Nevada corporation.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxx
Its: Partner Its: Pres/CEO
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State of Nevada )
) ss.
County of Washoe )
This instrument was acknowledged before me on the 27th day of December,
2001, by Xxxxx Xxxxxxxx, the Partner of Gold Ranch R.V. Resort, L.L.C.
/s/ Xxxxxx Xxxx
Notary Public
State of Nevada )
) ss.
County of Washoe )
This instrument was acknowledged before me on the 27th day of December,
2001, by Xxxxxx Xxxxx, the President/CEO of Last Chance, Inc.
/s/ Xxxxxx Xxxx
Notary Public
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