ST1002-CN080706
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Ken Griffin - RE: CSE Option Agreement
From: "Pete Smith" <Psmith@njdhs.com>
To:
"Jeff Fink" <jfink@applenorrisfink.com>
Date: 7/6/2008 12:43 PM
Subject: RE: CSE Option Agreement
CC:
<cphilips@ci.coppell.tx.us>, "Mindi Hurley" <mhurley@ci.coppell.tx.us>, ...
Attachments:CSE economic development agreement.doc; Clean PGS Copy Coppell Purchase Option
Agreement CSE Commercial Real Estate.doc
Jeff attached is clean copy of the Option Agreement and the latest draft of the economic development
agreement. Please note that these documents have not been reviewed and approved by the City. The
documents are subject to further change.
Peter G. Smith
Nichols, Jackson, Dillard
Hager & Smith, LLP
1800 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201
214-965-9900
214-965-0010 Fax
**Information contained in this transmission is attorney privileged and confidential. It is intended for the use of the
individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified
that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this
communication in error, please immediately notify us by telephone.
From: Jeff Fink [mailto:jfink@applenorrisfink.com]
Sent: Saturday, July 05, 2008 4:50 PM
To: Pete Smith
Subject: RE: CSE Option Agreement
Pete, both of the attached are red-lined. Please send me a clean version as well so that we can use that version to
respond with any suggested changes. Thanks.
Jeff Fink
Apple Norris & Fink, L.L.P.
735 Plaza Boulevard, Suite 200
Coppell, Texas 75019
Phone: (972) 315-1900 x232
Fax: (972) 315-1955
www.applenorrisfink.com
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From: Pete Smith [mailto:Psmith@njdhs.com]
Sent: Saturday, July 05, 2008 10:39 AM
To: Jeff Fink
Cc: cphillips@ci.coppell.tx.us; Mindi Hurley; Jim Witt; kgriffin@ci.coppell.tx.us; Kevin Laughlin
Subject: CSE Option Agreement
Jeff
Attached are redline and clean version of latest revisions to the CSE Option agreement. Please note that the
attached draft has not been reviewed or approved by the city and is subject to change and approval. This is just a
working draft and by no means is our final draft document regarding the option and purchase transaction. Please
review and provide your comments in by separate email.
We addressed some but not all of your comments. The redline looks worse than it really is. We have changed the
format to be consistent with the format used in the EDIA. We changed the term "CSE" to "Company" to be
consistent with the EDIA.
In addressing the issue of whether or not to do separate sales agreements each time CSE wants to purchase the
land for the next phase, we have opted to not do separate agreements, but instead place the provisions of the
sales agreement into the option agreement. The required the addition of some sections and moving of a number
of sections in the prior draft to bring all of the terms of sale and closing into Article III. In essence, the delivery of
the Option Notice will trigger the sales provisions without the necessity of preparing and signing a whole new
agreement.
As for who pays for the title policy, we have worked a middle ground where CEDF pays for the owners’ policy, but
only as if this were being done in a single $2M transaction. Thus, when we reach the point that the premiums
exceed $10,039, CSE begins to pick up the tab.
On the assignment of the agreement, we have made provision for allowing collateral assignment of the contract
and assignment to another entity controlled by the principals of CSE without consent, but subject to the assumption
of the obligations of the agreement and without requirement to release the assignor.
On termination for default (Article IV), we have added provisions that are loosely based on what CSE added to its
last version of the EDIA. As to remedies we have crafted Sections 4.3 and 4.4 which need additional work.
Peter G. Smith
Nichols, Jackson, Dillard
Hager & Smith, LLP
1800 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201
214-965-9900
214-965-0010 Fax
**Information contained in this transmission is attorney privileged and confidential. It is intended for the use of the
individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified
that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this
communication in error, please immediately notify us by telephone.
file://C:\Documents and Settings\radloo\Local Settings\Temp\XPgrpwise\4870BDD6City...11/15/2011
PGS CLEAN Draft 07-05-07
State of Texas §
§ Option and Restriction Agreement
County of Dallas §
This Option and Restriction Agreement (“Agreement”) is made and entered into on
__________, 2008 by and between CSE Commercial Real Estate, LP, a Texas Limited
Partnership, (the “Company”), and the Coppell Economic Development Foundation, Inc., a
Texas nonprofit corporation (the “CEDF”) acting by and through their authorized
representatives.
WHEREAS,
CEDF owns, or has contracted to purchase the approximately 23 acres
the
Exhibit “A”
of real property described in (the “Land”), attached hereto and incorporated herein
by reference, and desires to grant Company an option to purchase the Land, or portions thereof,
as set forth herein (the “Option”); and
WHEREAS,
the Company desires to purchase the Land pursuant to the Option and to
develop the Land for a mixed use development anchored by a town square and consisting of
approximately ten (10) retail office cottages built with craftsman architectural style, forty-four
(44) townhomes, eight (8) retail service buildings, and one (1) restaurant and future commercial
development to be agreed upon by the Parties (the “Project”); and
WHEREAS
, the Company will purchase and develop the Land in phases;
NOW, THEREFORE,
in consideration of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
Article I
Definitions
Whenever used in this Agreement, the following words, terms, and phrases shall have the
following meanings:
City Facilities”
“ shall collectively mean the Infrastructure and the Town Square.
“Commencement of Construction”
shall mean that point in time at which: (i) the plans
have been prepared and all approvals thereof required by applicable governmental authorities
have been obtained for the respective phase of the Project or the Infrastructure, as the case may
be; (ii) all necessary permits for construction of the respective phase of the Project or the
Infrastructure, pursuant to the respective plans therefore having been issued by all applicable
governmental authorities; and (iii) grading of the Land has commenced for the respective phase
of the Project or the Infrastructure, as the case may be.
“Company”
shall mean CSE Commercial Real Estate. LP, a Texas limited partnership.
“Completion of Construction”
shall mean that point in time at which: (i) the Project or
the Infrastructure, has been substantially completed, and (ii) a certificate of substantial
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completion has been issued by the general contractor(s) for the Project or the Infrastructure; and
(iii) the City has accepted the respective Infrastructure or the City has issued a Certificate of
Occupancy for the respective phase of the Project, as the case may be.
“Covenants”
shall mean that certain declaration of covenants, conditions, and
restrictions dated ________ as recorded in the Official Public Records of Dallas County, Texas.
“Economic Development Incentive Agreement”
shall mean that certain economic
development incentive agreement by and between the Parties dated of approximate even date
herewith.
“Effective Date”
shall mean the last date of execution hereof.
“Event of Bankruptcy, Insolvency, or Forfeiture”
shall mean the dissolution or
termination of a party’s existence as a going business, insolvency, appointment of receiver for any
significant part of such party’s property and such appointment is not terminated within ninety (90)
days after such appointment is initially made, any general assignment for the benefit of creditors, or
the commencement of any proceeding under any bankruptcy or insolvency laws by or against such
party and such proceeding is not dismissed within ninety (90) days after the filing thereof. An event
of forfeiture shall also include the suspension or termination of the right to conduct business in the
State of Texas pursuant to applicable provisions of the Texas Business Organizations Code for
failure to pay required Impositions or file required reports.
th
“Expiration Date”
“Ex shall mean the seventh (7) anniversary of the Effective Date.
“Finished Lot”
shall mean a developed lot or parcel with frontage on a public street with
on-site utilities installed.
“Force Majeure”
means any contingency or cause beyond the reasonable control of a
party including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action (unless caused by acts or omissions of the party), adverse weather, fires,
explosions or floods, strikes, slowdowns or work stoppages.
“Impositions”
shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees, and other charges by public or governmental authority, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed,
charged, levied, or imposed by any public or governmental authority on the Company and/or
affecting the Land.
“Infrastructure”
shall mean public streets, alleys, parking contiguous to the Town Square,
parking on the west side of the Coppell entry to the Project, water, storm water and sanitary sewer in
public right-of-way, retention pond if necessary, streetscape improvements in the public right-of-
way and the Town Square.
“Land”
shall mean the real property described in Exhibit “A”.
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“Old Coppell Design Guidelines”
shall mean the development guidelines for Old
Coppell Design as approved by the City, from time to time.
“Option”
shall mean the right granted to Company herein to purchase the Land,
excluding the Town Square site of approximately 2 acres in one or more sales transactions that
close within the periods required by this Agreement.
“Option Fee”
shall mean the sum of $2 Million Dollars to be paid by Company to the
CEDF as independent consideration for the Option as set forth herein.
“Parties”
shall mean collectively Company and CEDF.
“Phase One”
shall mean the first phase of the Project which shall consist of at least one
retail service building on the west side of the Town Square, one cottage on the north side of the
Town Square, and the initial phase of 16 units of townhomes fronting on the Town Square
together with the necessary water, sewer and other infrastructure including the respective portion
of the Infrastructure. The retail service building fronting the west side of the Town Square shall
consist of approximately 20,000 square feet of space, and the cottages fronting the north side of
the Town Square shall be designed, constructed and leased such that not less than forty percent
(40%) of the total cumulative square feet available will be used for restaurant and retail uses that
produce regular daily foot traffic within the Project.
“Plans”
shall mean the plans and specifications for design and construction of the City
Facilities as approved by the City.
“Project”
shall mean a mixed use development to be constructed on the Land, or portion
thereof, to be anchored by the Town Square, and consisting of approximately ten (10) retail
office cottages built with craftsman architectural style, forty-four (44) townhomes, eight (8) retail
service buildings, one (1) restaurant and future commercial development to be defined and
agreed upon by the Parties, private parking on the west, east and south sides of the perimeter of
the City Facilities, together with other required parking and landscaping all as further described
in the submittals filed with the City in order to obtain a building permit(s) from time to time.
“Purchase Price”
shall mean $1.00 per acre of land.
“Related Agreements”
shall mean the Economic Development Incentive Agreement and
any other appropriate agreement(s) related to the Project.
“Title Company”
shall mean Republic Title Company, whose address is
______________________________..
“Town Square”
shall mean the approximately two (2) acres of the Land on which the
City intends to construct a town square open space, generally consisting of landscaping, pavilion,
interactive water feature, playground equipment, and one additional public use venue or other
mutually agreed upon improvements.
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Article II
The Option
2.1 Option Fee.
Except as otherwise provided in this Agreement, the Option Fee is non-refundable.
Company shall pay the Option Fee to CEDF in installments as follows:
(a) $50,000.00 to be paid upon the Effective Date;
th
(b) $200,000.00 to be paid not later than the 90 day after the Effective Date;
th
(c) $1,750,000 to be paid not later than the fifth (5) business day following the date of
the award of the bid for the contract for the construction of the Infrastructure but in any
case on or before the date of closing of the Company’s purchase of the Phase One
portion of the Land.
Each installment of the Option Fee must be paid by certified or cashiers check made payable to
CEDF, or wired directly to an account designated by CEDF.
2.2 Option Granted.
In consideration of payment of the Option Fee, CEDF hereby grants to Company the
Option, which may be exercised only upon and subject to the following:
(a) All installments of the Option Fee that are due must be paid and current;
(b) Company must deliver to CEDF a written notice of its desire and intent to close
on a portion of the Property (“the Option Notice”) which must include:
(1) a survey containing at least the legal description of the portion of the Land
that Company desires to purchase; provided, however, if the portion of the Land on
which the Company desires to exercise its option to purchase can be described solely by
reference to a final plat approved by City and recorded in the Official Public Records of
Dallas County, Texas, without need to include a metes and bounds description, the
Option Notice shall contain such description and no survey shall be required;
(2) a description of the nature and use of the improvements to be constructed
on the portion of the Land to be purchased under the exercise of the Option that is in
compliance with the land use ordinances controlling development of the Land and the
Covenants;
(3) an acknowledgement and agreement that the purchase of the Land is
subject to the provisions of this Agreement and that this Agreement is in full force and
effect; and
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(4) the date of the proposed closing, which date shall be:
(i) for Phase One, on or before September 30, 2008;
(ii) for all other purchases, not later than thirty (30) days following
delivery of the Option Notice to CEDF, but in any case not later than the seventh
th
(7) anniversary following the Effective Date; and
(c) Company must be in material compliance with the Economic Development
Incentive Agreement.
2.3 Failure to Exercise Phase One Option; Termination.
Failure of Company to exercise the Option as to the purchase of the Phase One property
by September 30, 2008, shall terminate Company’s right to exercise the Option as to any other
portions of the Property and this Agreement shall terminate without further notice, and neither
party shall have any further rights or obligations herein.
2.4 Failure to Exercise Subsequent Options by Expiration Date:
Company’s right to exercise the Option with respect to any or all of the Property will
terminate if not exercised on or before the Expiration Date.
Article III
Sale of Land
3.1 Generally.
Upon the timely exercise of the Option by Company through delivery of an Option
Notice to CEDF, the CEDF agrees to sell, and Company agrees to purchase, the portion of the
Land described in the Option Notice subject to and in accordance with the provisions this Article
III and Articles V, and VI, below..
3.2Survey and Title Commitment.
(a) Not later than twenty (20) calendar days after the date of receipt of the Option
Notice, CEDF, shall deliver to Company:
(i) a current commitment for title insurance for the Land, or portion thereof,
from the Title Company, setting forth the state of title to the Land, or portion thereof, as
the case may be, together with any easements or restrictions (existing or created pursuant
hereto) benefiting or burdening the Land, together with all exceptions or conditions to
such title;
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(ii) legible copies of all documents referenced in the title commitments;
(iii) tax statements for current and prior years.
(b) The Company shall, not later than twenty (20) days after the Company’s receipt
of the last of the Survey and Title Commitment, notify CEDF and Title Company of any
objections to the Survey or Title Commitment. If there are objections to title by Company,
CEDF shall in good faith attempt to satisfy them prior to closing, but CEDF shall not be required
to incur any cost to do so. If CEDF delivers written notice to Company on or before the original
date for Closing that CEDF is unable to satisfy such objections to title prior to Closing, the date
for Closing shall, at the request of CEDF, be extended for a period of 60 days to provide
additional time to cure said objection. If CEDF is unable to cure the objection by the date of
Closing, the Company may either, waive such objection(s) and accept such title as CEDF is able
to convey, or terminate its exercise of the Option to purchase the Land or portion thereof by
written notice to CEDF.
(c) If CEDF is unable to cure the objection to title prior to Closing and the Company
elects to terminate its exercise of its Option to purchase the portion of the Land described in the
Option Notice, upon execution by Company of a release said tract from this Option Agreement,
CEDF agrees to refund the Option fee in an amount equal to:
(i) the ratio of the area of the portion of the Land described in the related
Notice of Exercise of Option to the entire area of the Land; multiplied by
(ii) $1,950,000.00.
3.3Insured Amount of Title Policy.
For purpose of determining the insured amount
of each title policy to be issued with respect to each sale a portion of the Land pursuant to this
Agreement, the amount shall be deemed to be an amount equal to the ratio of the area of the
portion of the Land being sold in relation to the entire area of the Land multiplied by the Option
Fee.
3.4Title to the Land
.
At closing the Company shall be entitled to receive, and CEDF shall deliver, good and
indefeasible fee simple title to portion of the Land described in the Option Notice, free and clear
of all liens and encumbrances, except:
(i) such easements, conditions and restrictions as are of record as of the date of the
CEDF’s purchase of the Land;
(ii) utility easements;
(iii) such conditions, restrictions, and encumbrances as may be contained in the
Covenants;
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(iv) such liens and encumbrances in favor of the Company’s lenders as may be
created at the time of Closing; and
(v) such other matters as Companymay waive.
3.5Permitted Exceptions.
. Company acknowledges and agrees that the Land, or
portion thereof, will be conveyed by CEDF at closing subject to the Covenants, the Restriction
Agreement, and that the Special Warranty Deed shall and be subject to such provisions. The
zoning, the lien for current taxes, the environmental condition and the Restriction Agreement
shall be deemed to be Permitted Exceptions. CEDF and Company agree and understand that
CEDF is conveying the Land as an independent foundation for the City of Coppell, Texas, and
Company acknowledges that the Land is conveyed subject to the Covenants and the Restriction
Agreement.
3.6Additional Condition to Closing
. Each closing is conditioned upon the CEDF
closing on the purchase of the Land, or that portion thereof, from the City of Coppell, Texas
pursuant to a purchase and option agreement for the Land by and between the CEDF and City of
Coppell.
3.7Closing and Settlement
.
Closing Date:
(a) Unless otherwise provided hereinabove, the closing and
settlement of the purchase and sale of the Land pursuant to any exercise of the Option shall be
th
made not later than the forth-fifth (45) day following delivery of the Option Notice to CEDF.
(“the Closing Date”) .
Purchase Price:
(b) At closing, Company shall pay the Purchase Price, in cash or by
certified or cashier’s check.
Special Warranty Deed:
(c) At Closing, CEDF shall deliver to Title Company for
delivery to the Company a special warranty deed and bill of sale conveying the tract described in
the Option Notice which shall be in form and substance reasonably satisfactory to CEDF, the
Company, and their respective counsel and containing such reservations and exceptions to title as
allowed by the provisions of this Agreement, including, but not limited to, the Permitted
Exceptions in accordance with the foregoing provisions
3.8 CEDF’s Closing Costs:
CEDF hereby agrees to pay and be responsible for the following closing cost:
(a) the cost of all tax certificates relating to all taxes and other assessments
incurred or arising in relation to the Property;
(b) one-half (½) of the Title Company’s escrow fees;
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(c) all costs and expenses incurred by or on behalf of the CEDF, including
CEDF’s attorney’s fees;
(d) such other incidental costs and fees customarily paid by sellers of real
property in Dallas County, Texas, for transactions of a similar nature to the transaction
contemplated herein, and
(e) all fees and premiums for the Basic Owner’s Title Policy; provided,
however, CEDF’s responsibility for payment of title policy fees and premiums for all
transactions closed pursuant to this Agreement shall not exceed the amount that would be
paid for a single issuance of an owner’s title policy in the amount of $2,000,000.00,
which is agreed to be $10,039.00.
3.9 The Company’s Closing Cost
The Company hereby agrees to pay and be responsible for the following closing cost:
(a) all fees and premiums for any endorsements to the Basic Owner’s Title
Policy, and fees and premiums for concurrent issuance of any mortgagee’s policy or
interim construction binder for the benefit of the Company’s lender;
(b) all fees and premiums for the Basic Owner’s Title Policy in excess of the
amount CEDF is required to pay pursuant to Section 9(d)(v), above.
(c) all fees and premiums for the Survey(s);
(d) recording fees for each deed, and any and all deeds of trusts, security
agreements, collateral assignments, assignments of rents, and other similar documents
related to any loan procured by the Company;
(e) one-half (½) of the Title Company’s escrow fees;
(f) all costs and expenses incurred by or on behalf of the Company, including
the Company’s attorneys’ fees;
(g) such other incidental costs and fees customarily paid by purchasers of
property in Dallas County, Texas, for transactions of a similar nature to the transaction
contemplated herein.
3.10Proration of Taxes.
Ad valorem taxes, assessments, and any other charges against the tract described in the
Option Notice shall be prorated as of the Closing Date and become the responsibility of the
Company as of the Closing Date.
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3.11 Representations and Covenants.
. CEDF represents and covenants that: (a) it has
authority to enter into this Agreement; and (b) no other person has any interests in or claims
against the Land (other than as reflected by the title commitment), and it will not hereafter
encumber the Land. Companyrepresents that it has authority to enter into this Agreement. The
only representations made by any party concerning the Land and this Agreement are as set out in
this Section 12.
3.12Right to Inspect Land;Land Sold As Is.
.
(a) Company shall have the right to conduct such inspections and obtain such
reports from third party engineers and consultants (including environmental consultants) as it
may require, to satisfy itself, as to the condition of the Land, or portion thereof.
(b) Companyrepresents that as of the closing of any purchase pursuant to the
Option that Companywill have fully inspected the Land, or portion thereof, will have made all
investigations as it deems necessary or appropriate and will be relying solely upon its inspection
and investigation of the Land, or portion thereof, for all purposes whatsoever, including, but not
limited to, the determination of the condition of the structures, improvements, soils, subsurface,
drainage, surface and groundwater quality, and all other physical characteristics; availability and
adequacy of utilities; compliance with governmental laws and regulations; access;
encroachments; acreage and other survey matters and the character and suitability of the Land.
(c) In addition, Companyacknowledges and agrees that the Land is being
purchased and will be conveyed “AS IS” with all faults and defects, whether patent or latent, as
of the Closing.
(d) Except with respect to the quality of the title being conveyed by CEDF to
Company pursuant to this Agreement, Company acknowledges and agrees thatthere have been
no representations, warranties, guarantees, statements or information, express or implied,
pertaining to the Land, its condition, or any other matters whatsoever, made to or furnished to
Companyby CEDF or City or any employee or agent of CEDF or City, except as specifically set
forth in this Agreement.
(e) The provisions of this Section 3.12 shall survive the Closing, whether one
or more, and the termination of this Agreement.
Article IV
Default, Termination, Remedies
4.1 Termination Events.
In addition to such other circumstances as set forth
elsewhere in this Agreement, this Agreement shall terminate upon the occurrence of any one or
more of the following:
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(a) the execution by the Parties of a written agreement terminating this Agreement;
(b) the Expiration Date;
(c) by a party providing written notice of termination to the other party after the party
receiving the notice has (1) failed to cure a breach of the terms and conditions of this Agreement
within 30 days after receiving written notice of said breach or (2) with respect to a breach that
cannot under the circumstances be reasonably cured within said 30 day period, the breaching
party has failed to commence the cure of such breach within 30 days after receiving written
notice of said breach and thereafter diligently pursued to completion the cure of said breach;
(d) by CEDF, if the Company suffers and Event of Bankruptcy, Insolvency, or
Forfeiture.
4.2 Termination by CEDF
. In the event this Agreement is terminated by CEDF
pursuant to Section 4.1(c) or (d), CEDF shall:
(a) be relieved of any further obligation under this Agreement to sell any portion of the
Land to the Company for which closing has not yet occurred; and
(b) be relieved of any obligation, if any, to refund any portion of the Option Fee paid
pursuant to this Agreement, to the extent this Agreement would otherwise require such refund;
and
(c) seek an award for actual damages incurred by CEDF as a result of such uncured
default by the Company, which may include, but not be limited to, payment of any unpaid
balance of the Option Fee.
4.3 Termination by the Company.
In the event this Agreement is terminated by the
Company pursuant to Section 4.1(c) prior to the Closing on all portions of the Land, Company’s
sole remedy as liquidated damages shall be the lesser of:
(a) the amount of the Option Fee paid to the date of termination less $50,000.00; or
(b) the ratio of the area of the portion of Land which has not been conveyed to the
Company to the entire area of the Land multiplied by $1,950,000.00.
In no case shall the amount of liquidated damages paid to Company exceed the amount of the
Option Fee paid to CEDF less $50,000.00.
Article V
Notices.
5.1Delivery of Notices.
All notices, requests, demands or other communications
required or permitted hereunder shall be in writing and shall be deemed to have been fully and
completely made when given by hand, by confirmed facsimile transmission or by overnight
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delivery by Federal Express or other reliable courier or the mailing of such by registered or
certified mail, addressed as follows:
If intended for CEDF, to:
Coppell Economic Development Foundation, Inc.
255 Parkway Blvd.
Coppell, Texas 75019
Attn: Clay Phillips
972/304-3677 Phone
With copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 N. Akard Street
Dallas, Texas 75201
Telephone: (214) 965-9900
Telecopier: (214) 965-0015
Email: psmith@njdhs.com
If intended for Company, to:
CSE Commercial Real Estate, L.P.
4956 N. O’Connor Blvd.
Irving, Texas 75062
Attn: Charles Cotton
With Copy to:
Jeffrey Fink
Apple Norris & Fink,LLP
735 Plaza Boulevard, Suite 200
Coppell, Texas 75019
5.2 Change of Address for Notice.
Any party may at any time and from time to
time by notice in writing to the other party hereto change the name or address of the person to
whom notice is to be given as hereinbefore provided.
Article VI
Miscellaneous.
6.1 Entireties
. This Agreement contains the entire agreement of the Parties
pertaining to the Land.
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6.2Modifications
. This Agreement may only be modified by a written document
signed by the Parties.
6.3Assignment
. Company may not assign its rights under this Agreement to any
entity without the express written consent of CEDF; provided, however, Company may, without
prior approval but with written notice to CEDF:
(a) grant a security interest in this Agreement by means of a collateral assignment of
this Agreement to a financial institution providing financing to the Company for the purchase
and/or development of the Project, but only if such collateral assignment obligates the financial
institution:
(i) to notify CEDF of any default in the provisions of any note or security
agreement which is secured in whole or in part by a security agreement in this
Agreement; and
(ii) obligates the financial institution, its successors, and assigns to assume the
rights and obligations of the Company in the event the financial institution forecloses its
security interest in this Agreement;
(b) assigns this Agreement to an entity duly authorized to conduct business in the
State of Texas controlled by Charles Cotton and Greg Yancy and the new entity agrees to assume
all rights and obligations of this Agreement.
The Company understands, acknowledges and agrees that CEDF shall be under no obligation to
release the Company, its partners, shareholders, successors, representatives, or assigns from the
obligations set forth in this Agreement in the event of any assignment of this Agreement,
whether such assignment is made with or without the consent of CEDF.
6.4Time is of the Essence
. Time is of the essence with respect to the performance
by the Parties of their respective obligations hereunder.
6.5 Non-Business Day
. If the final date of any period provided herein for the
performance of an obligation or for the taking of any action falls on a Saturday, Sunday, or
holiday, then the end of such period shall be extended to the next business day.
6.6Zoning
. CEDF assumes no obligation to change the current zoning on the Land.
6.7Brokers
. The Parties represent and warrant that they have not worked with any
broker relative to this transaction and that no brokerage commission is due and payable upon the
Closing. Each party shall indemnify each other from any claim for brokers’ commissions
relative to the sale of the property and alleged to be due.
6.8Counterparts
. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original for all purposes and constitute one and the same
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instrument; but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
6.9Legal Construction
. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and the Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in
it.
6.10Law Governing
. This Agreement shall be construed under and in accordance
with the laws of the State of Texas; and venue for any action arising from this Agreement shall
be in the State District Court of Dallas County, Texas. The Parties agree to submit to the
personal and subject matter jurisdiction of said court.
6.11Survival of Covenants
. Any of the representations, warranties, covenants, and
obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the Closing or the termination of the Agreement shall survive.
EXECUTED
this the _______ day of ___________, 2008.
Coppell Economic Development Foundation
By: ____________________
Name: Clay Phillips
Title: ___________________
EXECUTED
this the ________ day of ___________, 2008.
CSE Commercial Real Estate, L.P.
By: Debco Partners, LLC, its general partner
By: _________________________
Charles Cotton-Member
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CEDF’S Acknowledgment
State of Texas §
§
County of Dallas§
This instrument was acknowledged before me on the _____ day of __________, 2008 by
Clay Phillips, the Director of the Coppell Economic Development Foundation, a Texas non-
profit corporation on behalf of said corporation.
Notary Public, State of Texas
My Commission expires:
Company Acknowledgment
State of Texas §
§
County of Dallas§
This instrument was acknowledged before me this _________ day of ___________,
2008, by Charles Cotton, the member of Debco Partners, LLC, on behalf of said company.
Notary Public, State of Texas
My Commission expires:_______________
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Exhibit "A"
Legal Description of the Land
PGS CLEAN Draft 07-05-07
Exhibit “B”
Covenants to Be Attached