Exhibit 10.64


 


OPTION TO PURCHASE
REAL ESTATE

RIGHT OF FIRST REFUSAL


 


MADE
September 9,1999, by and between:


 


	
  Grantor/Sellers:

  	
   

  	
  Robert T. Sackrider and Marilyn G. Sackrider, H&W, whose address
  is 1633 East Michigan Avenue, Battle Creek, Michigan 49014

  
	
   

  	
   

  	
   

  
	
  and
  Grantee/Buyers:

  	
   

  	
  Nottawaseppi Huron Band of Potawatomi (a.k.a. Huron Potawatomi,
  Inc.), a Federally Recognized tribe, whose address is 2221 11⁄2 Mile Road,
  Fulton, Michigan 49052.

  



 


concerning the following
described property situated in the Township of Emmett, Calhoun County,
Michigan.


 


Commencing at
the West 1/4 post of Section 13, Town 2 South, Range 7 West, Emmett
Township, Calhoun County, Michigan; Thence North 00 degrees 03’28” East along
the West line of said Section, 46.99 feet to the southerly line of the exit
ramp for I-94, as recorded in Liber 898, Page 004 in the office of the Register
of Deeds for Calhoun County, Michigan; Thence North 89o06’09” East along said
southerly line, 214.69 feet; thence 362.37 feet along the arc of a curve to the
left whose radius measures 362.0 feet and whose chord bears north 60o25’31”
east, 347.43 feet; thence north 31o44’56” east, 263.62 feet; thence north
59o52’54” east, 81.39 feet to the Place of Beginning; thence continuing north
59o52’54” east 181.87 feet; thence south 78o01’12” east, 472.30 feet; thence
south 76o27’00” east, 1662.72 feet; thence south 00o04’24” west, 35.27 feet;
thence north 89o58’25” west, 297.00 feet to a Point 99 feet north of the
northwest corner of lot 21 of the Supervisor’s Plat of Wagner Acres, as
recorded in Liber 11 of Plats on Page 21 in the office of the Register of Deeds
for Calhoun County, Michigan, south 00o04’24” west along the west line of said
Plat, 2091.58 feet to the centerline of Michigan Ave.; thence north 55o29’21”
west along said centerline, 2350.98 feet; thence north 00o03’28” east, 1191.07
feet to the Place of Beginning.


 


and as shown on the attached
Exhibit A, hereinafter referred to as “the Premises.”


 

















 


I.                                         OPTION
TO PURCHASE


 


1.                                       Grant
of Option.  The Grantors, in consideration
of the sum of Two Hundred Sixteen Thousand ($216,000.00) Dollars, (the Option
Price), receipt of which is hereby acknowledged, hereby convey and warrant to
the Grantee the option to purchase the above described premises.  The option price is non-refundable.  It is applicable to the purchase price as
specifically provided below.


 


2.                                       Assignment,
Exercise.  It is the intention of
the Grantee to exercise this option as soon as approval can be obtained from
the Bureau of Indian Affairs for transfer of the property from fee to
trust.  The Grantee shall have the right
to direct that conveyance under this option be made directly to the BIA in
trust for the Nottawaseppi Huron Band of Potawatomi (a.k.a. Huron Potawatomi,
Inc.), a Federally Recognized tribe.


 


3.                                       Terms
and Conditions.  In the event the
option is exercised, the sale shall be consummated on the following terms and
conditions:


 


	
  Sale Price:

  	
   

  	
  Three
  Million Five Hundred and Forty-three Thousand Three Hundred Dollars
  ($3,543,300.00).

  
	
   

  	
   

  	
   

  
	
  Conveyance:

  	
   

  	
  By statutory
  form of warranty deed, with farmland language, and subject to easements and
  restrictions of record.  The parties
  specifically understand that the land in the Supervisor’s plat of Wagner
  Acres, Liber 11, page 2 1, may be bound by deed restrictions, and the
  conveyance will be subject to such restrictions.

  
	
   

  	
   

  	
   

  
	
  Owner’s
  Title Insurance:

  	
   

  	
  In the
  amount of $3,543,300.00, purchased by Seller, from First American Title
  Insurance Co.

  
	
   

  	
   

  	
   

  
	
  Prorations:

  	
   

  	
  Taxes
  prorated as prepaid, by due date method, as of the date of closing.

  
	
   

  	
   

  	
   

  
	
  Special
  Assessments:

  	
   

  	
  Seller will
  pay off any special assessments which are a lien as of the date of this
  option.

  



 


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  Land
  Division:

  	
   

  	
  No further
  land division rights are conveyed with the property.

  
	
   

  	
   

  	
   

  
	
  Closing:

  	
   

  	
  Seller shall
  tender closing within 21 days of the date of exercise of the option.

  
	
   

  	
   

  	
   

  
	
  Closing
  Costs:

  	
   

  	
  Seller will
  pay for an owner’s policy of title insurance and for transfer taxes
  statutorily levied on the Seller.  All
  other closing costs will be paid by Purchaser.

  



 


4.                                       Manner
of Exercising Option.  The Grantee
may exercise the option by written notice, signed by the Grantee, and delivered
to Seller.  Grantee shall provide such
notice by personal delivery, effective upon delivery, or by certified mail,
return receipt requested, effective as of the date of deposit with the U.S.
Postal Service.


 


5.                                       Time
For Exercise of Option.  This option
way be exercised at any time by the Purchaser prior to the time stated below for
lapse.


 


6.                                       Lapse,
Application of Option Fee, and Extension. 
This option will lapse one year from the date hereof.  During the first year from the date hereof,
the sum of $200,000 of the option fee is applicable to the Purchase Price.


 


Provided:  The Grantee shall have the right to pay an
additional $216,000 (for a total paid to the Grantor of $432,000) on or before
the first business day after the one year anniversary hereof, in which case the
date for lapse of this option is extended until two years from the date
hereof.  50% of the total option
payments, or $216,000, shall apply on the purchase price in the event the
option is exercised in its second year.


 


Provided
further, the Grantee shall have the right to pay an additional $216,000 (for a
total paid of $648,000), on or before the first business day after the second
anniversary hereof, in which case the date for lapse of this option is extended
until three years from the date hereof. 
25% of the total option payments, or $162,000, shall apply on the
purchase price in the event the option is exercised in its third year.


 


The amounts applied to the
purchase price, described above, are not cumulative.


 


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7.                                       Cancellation
Rights of Grantee, and Refund.  Deleted.


 


8.                                       Crops.  During the option period, the Grantor will
have the right to continue to farm the property and all crops grown thereon
shall be wholly the property of the Seller. 
If Grantor has crops in the field at the time of exercise of the option,
that will not be able to be harvested, the Purchaser will pay the Grantor at
the time of close an additional $200.00 per acre (or fraction thereof) if the
option is exercised before July 1, with the price to be $350.00 per acre
(or fraction thereof) if the option is exercised on or after July 1.


 


If the Grantee
shall do any damage to existing crops as a result of testing, engineering or
any other activity on the land, the Grantee shall repay the Grantor, on demand,
at the rate stated above for each acre, or fraction thereof, damaged.


 


9.                                       Access
to the Property.  During the option
period, the Grantee shall have access to the premises for purposes of any
inspection, engineering, study, evaluation, test or other purpose. The Grantee
will give the Grantor reasonable advance notice before coming onto the
property.  The Grantee will restore any
soil moved and return the land to its existing condition after any such event,
and will pay for any damaged crops as provided above.


 


10.                                 Covenant
of Title.  The Grantors do hereby
covenant that they have marketable title to the premises, free of lien or other
encumbrance, other than such deed restrictions as may existed on the platted
parcel contained in that description. 
The Seller will obtain a title commitment promptly upon execution of
this option.  If, within 30 days of the
date of delivery of that commitment Purchaser determines that there is a lien,
encumbrance or other cloud on title such that the property will not be acceptable
by the BIA for conveyance to trust, the Grantee may terminate this option and
all payments, with the exception of $16,000, will be refunded to Grantee.


 


11.                                 Tax
Free Exchange.  The Grantors may
convey this property as part of a 1031 Tax Free exchange.  Grantee will cooperate fully in such exchange.


 


12.                                 Berm.  After conveyance of the property, the
Grantee covenant that any construction on the property will include a 10 foot
berm, and evergreen plantings or other protection such that the subdivision to
the East of the property will be reasonably protected from noise, light and
other activity on the property.  This is
a personal covenant and shall survive the closing.  It may be enforced by the Grantor or by any lot owner in Wagner
Acres.


 


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II.                                     RIGHT
OF FIRST REFUSAL


 


13.                                 Grant.  As part of the exercise of this option, the
Grantors will grant to the Grantee hereof a right of first refusal on the
property indicated on the attached map, shown as Parcel F, with the legal
description also attached. This right shall lapse on December 31, 2002, on
the following terms:


 


a.                                       If
Seller desires to sell the Parcel subject to the right of first refusal and the
receive a valid offer to purchase, they shall transmit a copy of the offer to
the party with the right of first refusal.


 


b.                                      Purchaser
shall have thirty (30) days after notice to determine whether it wishes to
purchase the Parcel upon the same terms and conditions as in the valid offer,
or to waive its right to purchase the Parcel and permit Seller to sell the
Parcel to the offeror.


 


c.                                       If,
at the-end of thirty (30) days, Purchaser has not notified Seller of its intent
to purchase, Purchaser shall be deemed to have waived its right to purchase and
Seller may proceed to close the sale with the offeror pursuant to the valid
offer.


 


d.                                      If
Seller does not sell the premises to the offeror pursuant to the offer of
purchase, the Parcel shall remain subject to Purchaser’s right of first refusal
as provided in this instrument.


 


e.                                       If
the Parcel is sold in its entirety pursuant to the valid offer to purchase,
this right of first refusal shall terminate.


 


f.                                         Notices
to be delivered pursuant to this right of first refusal shall be in writing and
mailed to the party to receive the notice, by certified mail, return receipt requested,
at the address listed for the addressee in the then-current telephone directory
for the community in which the addressee’s principal office is located. All
notices shall be considered delivered on the day after mailing.


 


14.                                 Interpretation.  This agreement shall be interpreted under
the laws of the state of Michigan. It embodies the entire understanding of the
parties pertaining to the subject matter of this agreement.


 


15.                                 Binding
Effect.  This agreement shall bind
and benefit the heirs, Personal Representatives, executors, successors and
assigns of the parties, except as otherwise specifically stated above.


 


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16.                                 Gender,
Number.  Where context requires,
references made in the one gender or number may be read to include the
appropriate gender and number.


 


17.                                 Memorandum.  The parties agree that, upon the request of
Grantee, they will execute and record a memorandum of this option.


 


18.                                 Limited
Waiver of Sovereign Immunity.  The
covenants made by the Grantee in paragraphs 8 and 12 hereof may be enforced by
Arbitration before a party to be mutually agreed upon or, in default thereof,
by the American Arbitration Association. 
The Arbitrator’s award shall be final and binding, and may include an
award of the costs of arbitration (but not the parties’ own legal fees).  Such award may be enforced in any Federal
Court of competent jurisdiction or in the Circuit Court of Calhoun County,
Michigan.  The sovereign immunity of the
Grantee is waived only as specifically provided in this paragraph, and for no
other purposes.


 


A copy of the
resolution of the tribal counsel authorizing the execution of this agreement
and the waiver contained in this paragraph, is attached hereto as Exhibit A.


 


Signed on the date first above
written.


 


	
  Signed in
  the presence of:

  	
   

  	
  Signed:

  
	
   

  	
   

  	
   

  
	
   /s/ Joe Lloyd

  	
   

  	
  /s/ Robert
  T. Sackrider

  	
   

  
	
   

  	
   

  	
  Robert T.
  Sackrider

  
	
   

  	
   

  	
   

  
	
   /s/ Ronald J. DeGraw

  	
   

  	
  /s/ Marilyn
  G. Sackrider

  	
   

  
	
   

  	
   

  	
  Marilyn G.
  Sackrider

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nottawaseppi
  Huron Band of Potawatomi (a.k.a.

  Huron Potawatomi, Inc.), a Federally

  Recognized Tribe

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ Amos Day

  	
   

  
	
   

  	
   

  	
  By:  Amos Day

  
	
   

  	
   

  	
  Its:  Chairman

  



 


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AMENDMENT TO

OPTION TO PURCHASE REAL ESTATE

RIGHT OF FIRST REFUSAL

Dated: September 9, 1999


 


This Amendment
to the September 9, 1999 “Option to Purchase Real Estate Right of First
Refusal” is entered into on this 9th day of September, 2002, by and
between:


 


	
  Grantor/Sellers:

  	
   

  	
  Robert T.
  Sackrider and Marilyn G. Sackrider, H&W, whose address is 1633 East
  Michigan Avenue, Battle Creek, Michigan 49014.

  
	
   

  	
   

  	
   

  
	
  and
  Grantee/Buyers:

  	
   

  	
  Nottawaseppi
  Huron Band of Potawatomi (a.k.a. Huron Potawatomi, Inc.), a Federally
  Recognized tribe, whose address is 2221 1 1⁄2 Mile Road, Fulton, Michigan
  49052.

  



 


The parties hereby
agree to the following amendments:


 


I.                                         OPTION
TO PURCHASE


 


1.                                       Grant
of Option Extension. The Grantors, in consideration of the sum of Two Hundred
Sixteen Thousand and no/100 Dollars ($216,000.00) (the Option Price), receipt
of which is hereby acknowledged, hereby convey and warrant to the Grantee an
extension to the September 9, 1999 Option to Purchase the premises therein
described.  The Option extension price
is non-refundable, and is not applicable to the purchase price.


 


2.                                       Assignment
Exercise.  The Grantee shall have
the right to direct that conveyance under this Option be made directly to the
Bureau of Indian Affairs in trust for the Nottawaseppi Huron Band of Potawatomi
(a.k.a. Huron Potawatomi, Inc.), a Federally Recognized tribe.  Grantor and Grantee acknowledge that Grantee
may authorize Gaming Entertainment (Michigan), LLC, to exercise this Option and
acquire the subject property in its own name subject to an agreement between
Grantee and Gaming Entertainment (Michigan), LLC.


 


3.                                       Terms
and Conditions.  In the event the Option
is exercised, the sale shall be consummated on the following terms and
conditions.


 


	
  Sale Price:

  	
   

  	
  The base
  price for the real estate shall be Three Million Five Hundred Forty-three
  Thousand Three Hundred and no/100 Dollars ($3,543,300.00).  The base price shall be increased
  Forty-five Thousand and no/100 Dollars ($45,000.00) in the event the Option
  is not exercised before February 5, 2003 and the purchase price shall be
  increased Forty-five Thousand and no/100 Dollars (45,000.00) on the 9th
  day of each March, April, May, June, July, August, September, and
  February thereafter until the Option is exercised.

  
	
   

  	
   

  	
   

  
	
  Owner’s
  Title Insurance:

  	
   

  	
  Purchased by
  Seller, from First American Title Insurance Company in the amount of the purchase
  price.

  



 


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  Prorations:

  	
   

  	
  Property
  taxes, prior to the year of closing, shall be paid by Seller.  The year of closing taxes on the property
  herein sold by Seller to Buyer shall be prorated as of the date of closing on
  a calendar year basis.  In the event
  the actual amount to be billed for the current tax year is not available, the
  prior year’s taxes shall be used in computing proration.  Seller shall pay that portion of the total
  taxes billed in the year of closing which bears the same ratio as the number
  of days in the year of closing prior to the closing date bears to 365 days.

  



 


4.                                       Lapse,
Application of Option Fee, and Extension. 
This Option shall extend for one (1) year and one (1) day from
September 9, 2002, and shall expire at midnight on September 10,
2003.  None of the Option payments paid
by Grantee under the September 9, 1999 Option or paid upon this Amendment
or any subsequent option extension payment shall apply upon the purchase price.


 


Provided:  The Grantee shall have the right to pay an
additional Two Hundred Sixteen Thousand and no/100 Dollars ($216,000.00) on or
before midnight September 10, 2003, in which case the date for lapse of
this Option is extended until midnight September 11, 2004.  Grantee shall have the right to extend this
Option for additional one (1) year and one (1) day terms by payment of the
additional sum of Two Hundred Sixteen Thousand and no/100 Dollars ($216,000.00)
for each such extension.  As noted
above, none of the Option extension payments shall apply upon the purchase
price and the Option price shall continue to increase Forty-five Thousand and
no/100 Dollars ($45,000.00) on the 9th day of each February, March, April, May,
June, July, August and September of each Option extension year.


 


In all other
respects, the Option to Purchase Real Estate Right of First Refusal dated
September 9, 1999 shall remain in full force and effect as originally
executed.


 


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Signed on the date first above
written.


 


	
  Signed in
  the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ Ronald J. DeGraw

  	
   

  	
  /s/ Robert
  T. Sackrider

  	
   

  
	
   

  	
   

  	
  Robert T.
  Sackrider

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ John M. Schafer

  	
   

  	
  /s/ Marilyn
  G. Sackrider

  	
   

  
	
   

  	
   

  	
  Marilyn G.
  Sackrider

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nottawaseppi Huron Band of

  Potawatomi (a.k.a. Huron

  Potawatomi, Inc.), a Federally

  Recognized Tribe

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ Louise Steenstra

  	
   

  	
  /s/ Gilbert
  Holliday

  	
   

  
	
   

  	
   

  	
  By: Gilbert
  Holliday

  
	
   

  	
   

  	
  Its: Acting
  Chairman

  



 


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