Exhibit 10.4.1
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF
FIRST REFUSAL AGREEMENT (this “Agreement”) is entered
into the 18th day of August, 2004 (the “Effective
Date”), by and between Covenant Place of Abilene, Inc., a
Delaware corporation (“Covenant”), and Capital Senior
Living Acquisition, LLC, a Delaware limited liability company
(“Capital”).
W I T N E S S E T H:
WHEREAS, Covenant
is the owner of the real property more particularly described on
Exhibit “A” attached hereto and made a part hereof for
all purposes, and of the improvements thereon (the
“Property”); and
WHEREAS, the
parties desire to evidence Covenant’s agreement to grant to
Capital a right of first refusal to purchase a fee simple interest
in the Property upon the occurrence of certain events and otherwise
subject to the terms and conditions of this Agreement.
NOW, THEREFORE,
for and in consideration of TEN DOLLARS ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties have agreed and do hereby’
agree as follows:
1. Restrictions
on Transfer and Certain Definitions.
(a) Covenant shall
not Transfer any Property Interest without first complying with the
terms and provisions of this Agreement.
(b) For the
purposes of this Agreement, (i) “Property Interest”
means (A) with respect to the Property, any interest in the
Property or in any portion of the Property, (B) with respect
to Covenant, any interest in Covenant, (C) with respect to an
Affiliate Property (as defined in Section 2(d) below), any interest
in the Affiliate Property or in any portion of the Affiliate
Property, and (D) with respect to an Affiliate Owner (as
defined in Section 2(d) below), any interest in such Affiliate
Owner, and (ii) “Transfer” means to sell, assign,
lease, or otherwise transfer to any person or entity other than the
Transferor’s lender.
2. Right of
First Refusal. Commencing on the Effective Date and continuing
thereafter for a period of fifteen (15) years (the
“Refusal Period”), Covenant shall not Transfer any
Property Interest unless Covenant shall have first offered the
Property Interest subject to the proposed Transfer to Capital in
the manner and to the extent hereinafter set forth:
(a) Third-Party
Offer. If Covenant desires to effect a Transfer of a Property
Interest (the “Third Party Offeror”) pursuant to a bona
fide written offer (“Offer”), it shall send to Capital
a written notice thereof (“Third Party Offer Notice”),
which Notice shall include a true copy of the Offer.
RIGHT OF FIRST REFUSAL
AGREEMENT — Page 1
(b) Capital
Purchase Right. Capital shall have a prior right to purchase all of
the Property Interest that is the object of the Offer (the
“Capital Purchase Right”) on the terms and conditions
set forth in this Agreement by sending written notice of
Capital’s election to exercise the Capital Purchase Right
(the “Capital Election Notice”) to Covenant within
fifteen (15) days after Capital receives the Third Party Offer
Notice. Exercise of the Capital Purchase Right in accordance with
the terms and conditions of this Agreement shall entitle Capital to
purchase the Property Interest on the identical terms and
conditions set forth in the Offer except (i) with respect to
the identity of the Purchaser, (ii) that the relevant time
periods in the Offer (such as, for example, with respect to
feasibility and due diligence periods, and closing) shall be
extended by no more than thirty (30) days if Capital, j in its
reasonable judgment, needs such additional time to close the
purchase of the Property Interest and so notifies Covenant in a
writing to such effect signed by an executive officer of Capital,
and (iii) that if Capital delivers to Covenant the Capital
Election Notice by no later than 5:00 p.m. Central Standard Time on
February 18, 2007, the purchase price for the Property
Interest subject to the Offer shall be the lesser of (i) the
purchase price contained in the Offer, or (ii) Two Million
Nine Hundred Seventy-Four Thousand One Hundred Forty-Three Dollars
($2,974,143) (the “Purchase Price”). The delivery to
Covenant of a Capital Election Notice as provided herein shall
constitute Capital’s obligation to purchase the applicable
Property Interest in accordance with the terms and conditions of
this Agreement and of the Definitive Agreement (as defined in
subsection (c) below).
(c) Consummation
of Purchase and Sale of Property Interest. In the event that
Capital exercises the Capital Purchase Right, the purchase and sale
of the applicable Property Interest shall be consummated pursuant
to the terms and conditions; set forth in a definitive agreement of
purchase and sale that includes the terms And conditions of the
Offer (as modified in accordance with subsection (b) above)
and such other customary terms and conditions as the parties,
acting reasonably, may agree (a “Definitive
Agreement”).
(d) Sale to Third
Party Offeror. In the event that Capital fails timely to exercise
the Capital Purchase Right in accordance with the terms and
conditions of this Agreement (whether or not Capital has delivered
a Capital Election Notice to Covenant), Covenant shall be free, in
its sole discretion, to consummate the sale of the Property
Interest to the Third Party Offeror pursuant to the terms and
conditions of a definitive agreement of purchase and sale that
includes the terms and conditions of the Offer; provided, however,
that, in the event that the purchase and sale of the applicable
Property Interest is not consummated within the time frame(s)
provided in the Offer, then such Property Interest shall once again
be subject to the terms and conditions of this Agreement.
Notwithstanding anything in this Agreement or in any other
agreement to the contrary, Covenant shall not be entitled to accept
the Offer and to consummate the Transfer of any Property Interest
(i) described in Section l(b)(i)(A) above unless (A) the Offer
includes a Transfer of an analogous Property Interest in all of the
properties listed in Schedule 1 attached hereto and made a
part hereof (the “Affiliate Properties”) from the
owners of such properties, which are affiliates of Covenant (the
“Affiliate Owners”), and (B) Transfer of the
Property Interest and of all such analogous Property Interests
owned by the Affiliated Owners are consummated simultaneously, and
(ii) described in Section
RIGHT OF FIRST REFUSAL
AGREEMENT — Page 2
l(b)(i)(B) above unless (A) the Offer includes a
Transfer of an analogous Property Interest in all Affiliate Owners,
and (B) Transfer of the Property Interest and of all such
analogous Property Interests of all such Affiliate Owners are
consummated simultaneously. Notwithstanding anything in this
Agreement or in any other agreement; to the contrary, the Capital
Purchase Right shall apply only in the event that Capital duly
exercises such right (or an analogous right) with respect to all
Property Interests that are the subject of the Offer.
3. Transfer
Contrary to Agreement. Any purported Transfer in violation of any
provisions of this Agreement shall be void and ineffectual, shall
not operate to transfer any interest or title to the purported
transferee and shall give Capital an option to purchase such
Pro
