RIGHT OF FIRST REFUSAL
THIS RIGHT OF FIRST REFUSAL is given as of the 15th day of June, 1998, by , a Delaware corporation ("Seller"), to , a Colorado corporation ("Buyer").
1. Grant; Description of Property. For valuable consideration, and subject to the conditions set forth below, Seller hereby grants to Buyer the right of first refusal with respect to any sale of all or any part of the following real property (the "Property") owned by Seller in Jefferson County, Colorado:
That part of the N1/2 N1/2 N1/2 of Section 21, Township 3 South, Range 70 West of the 6th P.M. lying easterly of Colorado State Highway 93, together with all appurtenances thereto and all improvements thereon.
This right of first refusal may not be exercised in connection with the sale of all or any part of the Property simultaneously with a sale to the same party of a substantial part of the land now owned by Seller in Sections 10, 11, 14, 15, and 22 of said Township (the "Other Land"), but such right of first refusal shall remain in effect and be enforceable against Seller's transferee to the same extent as it would be enforceable against Seller.
2. Notice of Acceptable Offer. If at any time or times during the term of this right of first refusal, Seller receives an offer acceptable to Seller for the purchase of all or any part of the Property, then, unless such offer also provides for the simultaneous purchase by the same purchaser of a substantial part of the Other Land, Seller shall forthwith forward a copy of such offer (the "Acceptable Offer") to Buyer.
3. Exercise by Buyer. Buyer shall have a period of 30 days after receiving such copy of the Acceptable Offer within which to notify Seller that Buyer elects to purchase the Property (or the portion thereof covered by the Acceptable Offer) on the terms contained therein. Any such notice from Buyer shall be accompanied by any earnest money required under the terms of the Acceptable Offer, which shall then constitute a contract between Seller and Buyer even though neither has signed it.
4. Waiver by Buyer. If Buyer does not notify Seller within the 30‑day Period mentioned in the preceding paragraph of Buyer's election to purchase such property, Seller shall be free to 'sell such property to the person who submitted the Acceptable Offer (or to such person's permitted assigns) on the terms specified therein, and Buyer shall upon request execute and deliver an instrument in recordable form appropriate to evidence Buyer's relinquishment of its rights under this instrument with respect to such transaction. Notwithstanding any such relinquishment, Buyer's rights under this instrument shall remain in effect with respect to any part of the Property not covered by the Acceptable Offer, and, if the transaction contemplated by the Acceptable Offer fails for any reason to close, with respect to any subsequent offer to purchase all or any part of the Property covered by such Acceptable offer.
5. Term. The term of this right of first refusal shall extend for 15 years from the date hereof and for so long thereafter as Buyer is engaged with reasonable diligence in mining, quarrying, or rock‑crushing activities on North Table Mountain near Golden, Colorado; provided, that such term shall in no event extend more than 20 years and 11 months beyond the death of the last surviving member of the group of persons consisting of the present members of Buyer's board of directors and their descendants now living.
6. Notices. Any notice required or permitted to be given under this right of first refusal shall be in writing and shall be deemed given upon personal delivery or on the second business day after mailing by registered or certified United States mail, postage prepaid, to the appropriate party at its address stated below:
Golden, Colorado 80401
Denver, CO 80221
Either party may change its address for notices by notice to the other party as provided above.
7. Binding Effect. The provisions of this instrument shall bind and benefit Seller and Buyer and their respective successors and assigns.
IN WITNESS WHEREOF, Seller has executed this right of first refusal on the date set forth in its acknowledgement, intending it to take effect as of the date first mentioned above.
STATE OF NEW YORK )
COUNTY OF WESTCHESTER )
The foregoing instrument was acknowledged before me this day of June, 1998, by as President of , a Delaware corporation.
My commission expires:
Witness my hand and official seal.
10/28/99 3:20 PM