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EXHIBIT 10.7
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT is made and entered as of the
6th day of March, 1998, by and among Xxxx Properties, Ltd., Natex, Ltd., Xxxxx
Xxxxxxxxx, Ltd., Anywhere, Ltd., Who, Ltd., Xxxxx Tower, Ltd., and Las Vegas
Motor Speedway, Inc. (the "Seller"), PALACE REIT, a Texas real estate
investment trust (the "REIT") and PALACE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the "Partnership"). The REIT and the Partnership
are sometimes hereinafter collectively referred to as "Palace".
W I T N E S S E T H :
A. Seller owns certain improved real property being more
particularly described on Exhibit A attached hereto and made a
part hereof for all purposes (collectively, the "Property").
B. Seller desires to grant to Palace and its successors and
assigns a right of first refusal for the purchase of the
Property on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, do hereby agree as follows:
1. RIGHT OF FIRST REFUSAL. Seller hereby grants Palace and its
successors and assigns a right of first refusal for the purchase of the
Property. Palace's right of first refusal for the Property shall be exercised
as follows:
a. In the event that on or prior to the date 90 days after the
date of closing by Palace of certain properties owned by affiliates of Seller,
Seller receives a bona fide offer (an "Offer") to purchase the Property, or any
portion thereof, from a purchaser unrelated to Seller, and if Seller is willing
to sell the property described in the Offer upon the terms set forth therein,
Palace shall have a right of first refusal to purchase the property set forth
in the Offer upon the identical terms set forth in the Offer, otherwise this
Right of First Refusal shall terminate at expiration of the ninety (90) day
period, unless extended in writing by Seller.
b. Upon Seller's receipt of an Offer that Seller wishes to
accept, Seller shall provide Palace with a copy of the Offer. Palace shall
have a period of thirty (30) days after receipt of an Offer to submit to Seller
a contract containing the same terms and conditions as the Offer, accompanied
by an xxxxxxx money deposit in the same amount as the deposit accompanying the
Offer.
c. In the event that (i) Palace elects not to submit a contract
for the purchase of the property described in the Offer, (ii) Seller accepts
the Offer, and (iii) Seller subsequently agrees to modify any material
provision of the Offer, such modification of the Offer term ("Modified Offer")
shall reactivate Palace's right of first refusal with respect to the Modified
Offer. Seller shall be required to submit the Modified Offer to Palace and
Palace shall have a period of thirty (30) days
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after receipt thereof to submit to Seller a contract containing the same terms
and conditions as the Modified Offer.
d. In the event that Palace elects not to submit a contract for
the purchase of the property described in the Offer or any Modified Offer
within thirty (30) days after receipt of such Offer or any Modified Offer from
Seller, Palace shall be deemed to have waived its right of first refusal with
respect to the Offer or Modified Offer, and provided that Seller closes with
the purchaser in accordance with the Offer or Modified Offer, Palace's right of
first refusal shall be terminated as to the portion of the Property sold and
conveyed in accordance with the Offer or Modified Offer.
e. In the event that (i) Palace elects not to submit a contract
for the purchase of the property described in the Offer within the thirty (30)
days period provided, (ii) Seller accepts the Offer, and (iii) Seller fails to
close on the sale of the property in accordance with the Offer, Palace shall
continue to have a right of first refusal with respect to the property
described in the Offer.
f. In the event that an Offer submitted to Seller, which Seller
wished to accept, includes as part of the purchase price consideration other
than cash (e.g. real estate or securities), and in the event that Palace wishes
to exercise its right to purchase in accordance with the Offer, Palace may pay
the non-cash portion of the consideration set forth in the Offer in cash.
g. In the event that Seller sells and conveys the Property or any
portion thereof to a purchaser other than an unrelated bona fide third party
purchaser, Palace shall continue to have a right of first refusal with respect
to the Property.
2. NOTICE. All notices, demands, requests, or other writings in
this Agreement provided to be given, made or sent, or which may be given, made
or sent, by either party hereto to the other, shall be in writing and shall be
delivered by depositing the same with any nationally recognized overnight
delivery service, or by telecopy or fax machine, in either event with all
transmittal fees prepaid, properly addressed, and sent to the following
addresses:
If to Seller: Xxxxx Xxxxxxxxx
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxx, Xxxxxx & Xxxxxx, Ltd.
000 X. Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: W. Xxxx Xxxx
Fax: (000) 000-0000
If to the Partnership 3535 Las Vegas Blvd. South
or the REIT: Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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with a copy to: Liddell, Sapp, Zivley,
Hill & XxXxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
Fax: (000) 000-0000
or to such other address as either party may from time to time designate by
written notice to the other. Notices given by (i) overnight delivery service
as aforesaid shall be deemed received and effective on the first business day
following such dispatch and (ii) telecopy or fax machine shall be deemed given
at the time and on the date of machine transmittal provided same is sent prior
to 5:00 p.m., central time, on a business day (if sent later, then notice
shall be deemed given on the next business day) and if the sending party
receives a written send confirmation on its machine and forwards a copy thereof
by overnight delivery service accompanied by such notice or communication.
Notices may be given by counsel for the parties described above, and such
notices shall be deemed given by said party, for all purposes hereunder.
3. ENTIRE AGREEMENT; NO THIRD-PARTY RIGHTS. This Agreement
constitutes the entire agreement between the parties regarding the subject
matter hereof and incorporates and supersedes all prior negotiations and
discussions between the parties. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and their successors and
assigns, and nothing in the Agreement, express or implied, is intended to
confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
4. AMENDMENT. This Agreement cannot be amended, waived or
terminated orally, but only by an agreement in writing signed by each party
hereto.
5. GOVERNING LAW. This Agreement shall be interpreted and
governed by the laws of the State of Nevada, without regard to its rules of
conflicts of laws and shall be binding upon the parties hereto and their
respective successors and assigns.
6. SECTION HEADINGS. The caption headings in this Agreement are
for convenience only and are not intended to be part of this Agreement and
shall not be construed to modify, explain or alter any of the terms, covenants
or conditions herein contained.
7. SEVERABILITY. If any term, covenant or condition of this
Agreement is held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
8. NO OTHER RIGHTS OR OBLIGATIONS. Nothing contained in this
Agreement shall be deemed to create any rights or obligations of partnership,
joint venture or similar association between Seller and Palace.
9. COUNTERPARTS. This Agreement may be executed by the parties
hereto in counterparts, all of which together shall constitute a single
Agreement.
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10. CONSTRUCTION. All references herein to any Section, or
Exhibit, shall be to the Sections of this Agreement and to the Exhibits annexed
hereto unless the context clearly dictates otherwise. All of the Exhibits
annexed hereto are, by this reference, incorporated herein.
11. ATTORNEYS' FEES. In the event of any litigation or
alternative dispute resolution between the Partnership or the REIT, on the one
hand, and Seller, on the other hand, in connection with this Agreement or the
transactions contemplated herein, the non-prevailing party in such litigation
or alternative dispute resolution shall be responsible for payment of all
expenses and reasonable attorneys' fees incurred by the prevailing party.
12 INTERPRETATION. Whenever used herein, the singular number
shall include the plural, the plural shall include the singular, and the use of
any gender shall be applicable to all genders.
REMAINDER OF THIS PAGE
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
SELLERS: Xxxx Properties, Ltd., Natex,
Ltd., Xxxxx Xxxxxxxxx, Ltd., Anywhere,
Ltd., Who, Ltd., Xxxxx Tower, Ltd., and
Las Vegas Motor Speedway, Inc.
all Nevada Corporations
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxxx
President of all the above listed
corporations
REIT:
PALACE REIT
a Texas real estate investment trust
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
PARTNERSHIP:
PALACE OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Palace REIT
a Texas real estate investment trust
Sole General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
SIGNATURE PAGE TO
RIGHT OF FIRST REFUSAL AGREEMENT
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EXHIBIT "A"
SELLER PROPERTY ADDRESS
------ -------- -------
Xxxx Properties, Ltd. 14-Story Office Building 300 S. Main
Approx. 220,000 Sq. Ft. Norfolk, Virginia
Natex, Ltd. 0-Xxxxx Xxxxxx Xxxxxxx 000 Xxxxx Xxxxxx
Approx. 35,000 Sq. Ft. Tyler, Texas
Xxxxx Xxxxxxxxx, Ltd. 0-Xxxxx Xxxxxx Xxxxxxxx 0000 X. 00xx
Approx. 85,000 Sq. Ft. Kansas City, Missouri
Anywhere, Ltd. 00-Xxxxx Xxxxxx Xxxxxxxx 000 X. Xxxxxxx
Approx. 190,000 Sq. Ft. Midland, Texas
Who, Ltd. 0-Xxxxx Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxx
Approx. 120,000 Sq. Ft. Midland, Texas
Xxxxx Tower, Ltd. 0-Xxxxx Xxxxxx Xxxxxxxx 00 Xxxxx Xxxx
Approx. 80,000 Sq. Ft. Midland, Texas
Las Vegas Motor 00 Xxxxxxxxxx Xxxxxxxxx 000 Xxx Xxxxx Xxxx Xxxxx
Speedway, Inc. Approx. 1,450,000 Sq. Ft. North Las Vegas, Nevada
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
SELLER(S): XXXX PROPERTIES, LTD., NATEX, LTD., XXXXX XXXXXXXXX, LTD.,
ANYWHERE, LTD., WHO, LTD., XXXXX TOWER, LTD., AND LAS VEGAS MOTOR SPEEDWAY,
INC.
All Nevada Corporations
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
President of all the above listed Corporations
REIT: PALACE REIT
a Texas real estate investment trust
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
PARTNERSHIP: PALACE OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Palace REIT
a Texas real estate investment trust
Sole General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
