PLANO INDEPENDENT SCHOOL DISTRICT
AGENDA ITEM
MEETING DATE:
April 19, 2011
ACTION ITEM:
Approval of Real Estate Sales Contract between Plano ISD
(Purchaser) and Nationwide Life Insurance Company (Seller) for the
purchase of real estate property.
INFORMATION SUBMITTED BY:
Richard Matkin - (469) 752-8113
COMMENTS:
The District has reached an agreement with Nationwide Insurance Company to purchase an existing corporate
facility located on 6.421 acres with a physical address of 1701 Alma, Plano, Texas. This purchase is intended
for use as an Academy site.
Building Facts:
108,210 square feet
3-story
Class A Office Building
369 parking spaces
Easement will add another 198 parking places
Built in 1999
Supplemental HVAC units
Exposed ceilings with indirect lighting
Highly efficient and functional building
Raised computer flooring in data/LAN room
The District has complied with the required advertising of this purchase and anticipates closing on the property
by April 29, 2011.
A draft of the contract drawn up by the District’s legal counsel is attached.
BUDGET IMPACT:
Bond 2008 - $6,385,000
RECOMMENDATION:
The administration recommends the approval of the real estate contract between Plano ISD (Purchaser) and
Nationwide Life Insurance Company for the purchase of real estate property at 1701 Alma, Plano, Texas. The
Superintendent or his Designee is authorized to close on the property, after all terms and conditions set forth in
the contract have been fulfilled.
2700 W. 15th Street
Plano, Texas 75075-7543
(469) 752-8100
www.pisd.edu
PURCHASE AND SALE AGREEMENT
Collin Creek Corporate Center, 1701 Alma Drive, Plano, Texas (6.42 acres)
This Purchase and Sale Agreement ("Agreement"), is entered into by and between NATIONWIDE LIFE
INSURANCE COMPANY, an Ohio corporation ("Seller") and PLANO INDEPENDENT SCHOOL DISTRICT,
an independent school district organized under the laws of the State of Texas ("Buyer"). The “Agreement
Date” and “Effective Date” of this Agreement are set forth in Sections 1.1(e) and 1.1(f) below.
ARTICLE I
NOTICE ADDRESSES/DEFINED TERMS/PROPERTY
1.1
Notice Addresses/Defined Terms.
(a) Buyer’s Notice Address:
Plano Independent School District
Attn: Richard Matkin, CPA
2700 W. 15th Street
Plano, Texas 75075
Tel: 469.752.8023 Fax: 469.752.8125
E-mail: Richard.Matkin@pisd.edu
With a copy to:
Abernathy, Roeder, Boyd & Joplin, P.C.
Attn: Robert Roeder
1700 Red Bud Boulevard, Suite 300
McKinney, TX 75069-1210
Tel: 214.544.4000 Fax: 214.544.4044
E-mail: Rroeder@abernathy-law.com
(b) Seller’s Notice Address:
Holliday Fenoglio Fowler, L.P.
Attn: Andrew S. Levy, Sr. Managing Director
8401 North Central Expressway
Suite 700
Dallas, Texas 75225
Tel: 469.232.1961 Fax: 214.265.9564
E-mail: alevy@hfflp.com
With a copy to:
Nationwide Life Insurance Company
Attn: Heather D. Gregg, Esq.
Office of the General Counsel
One Nationwide Plaza, 1-34-06
Columbus, Ohio 43215
Tel: 614.249-4614 Fax: 614.677-2285
E-mail: greggh@nationwide.com
(c) Title Company/ Escrow Agent:
Republic Title
Attn: Scott Sherer/Teresa Rodden
2626 Howell Street, 10th Floor
Dallas, Texas 75204
Tel: 214.855.8865 Fax:
214.855.8848
E-mail: ssherer@republictitle.com
trodden@republictitle.com
(d) Seller’s Property Manager:
Cassidy Turley
Attn: Clint Madison, Managing Director
3500 Maple Avenue, Suite 220
Dallas, TX 75219
Tel: 972.692.1750 Fax: 972.692.1740
E-mail: clint.madison@cassidyturley.com
(e)
Agreement Date: The date that this Agreement was signed by either the Buyer or the Seller,
whichever was last to sign, as indicated on the signature page.
(f)
Effective Date: The date on which the Title Company receives the Earnest Money Deposit.
See Section 2.2 below.
(g)
Purchase Price: $6,385,000.00 (US Dollars) See Section 2.1.
(h)
Earnest Money Deposit: $100,000.00, which is due within three (3) business days following
execution of this Agreement by both Buyer and Seller and delivery to Buyer of an electronic copy of this
Agreement executed by Seller. See Section 2.2 below.
(i)
Inspection Period: The period ending on April 20, 2011. See Section 4.1 below.
(j)
Closing Date:
CLOSING below.
Closing shall occur no later than April 29, 2011. Also see Article VIII –
(k)
Brokers: At closing, Seller shall pay to D. Jan Pippard, The Pippard Company, Texas License
No. 0192006 (“Buyer’s Representative”) a fee in an amount equal to two percent (2%) of gross sale
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proceeds. In addition to the foregoing, Seller shall pay a fee to Holliday Fenoglio Fowler, L.P. (“Seller’s
Representative”) pursuant to a separate agreement.
1.2
Property. Subject to the following provisions, Seller agrees to sell, and Buyer agrees to buy, the
following described properties (hereinafter referred to collectively as the "Property"):
(a)
Real Property. Seller's fee simple title in and to a tract of land situated in the City of
Plano, County of Collin and State of Texas, as described more specifically in Exhibit "A" attached hereto and
incorporated herein, generally known as 1701 Alma Drive, Plano. Texas 75075, together with all and singular
of Seller's rights and appurtenances pertaining to such real property including, without limitation, all
easements, streets, alleys and rights-of-way and all rights of Seller relating to ingress and egress and all strips
and gores between such real property and adjacent land (collectively referred to as the "Land");
(b)
Improvements. All buildings and improvements ("Improvements") located on the
Land;
(c)
Personal Property. With the exception of any personal property of Seller that is used
in connection with Seller’s business operations, which is specifically excluded and is not being conveyed
pursuant to this Agreement, personal property being conveyed shall include all mechanical systems, fixtures
and equipment including, but not limited to, (i) compressors and engines; (ii) electrical systems, fixtures and
equipment; (iii) plumbing fixtures, systems and equipment; (iv) heating fixtures, systems and equipment; (v) air
conditioning fixtures, systems and equipment; (vi) carpets and drapes; (vii) maintenance equipment and tools;
and all other machinery, equipment, and fixtures, if any, owned by the Seller that is located on the Land and
used exclusively in connection with maintaining the Land or the Improvements and would customarily be
conveyed with the sale of a commercial property ("Personal Property");
(d)
Plans, Etc. All site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor plans, landscape plans and other
plans, diagrams or studies of any kind that are in Seller's possession or control and that relate to the Land, the
Improvements or the Personal Property;
(e)
Tenant Leases. Intentionally deleted.
(f)
Miscellaneous Documents. Intentionally deleted.
ARTICLE II
PURCHASE PRICE
2.1
Payment of Purchase Price. The purchase price for the Property, as set forth in Section 1.1(g)
above, shall be paid at Closing (as further defined in Article VIII) by wire transfer or other immediately available
funds reasonably acceptable to Seller.
2.2
Payment of Earnest Money Deposit. Within three (3) business days following execution of this
Agreement by both Buyer and Seller and delivery to Buyer of an electronic copy of this Agreement executed
by Seller, Buyer shall deposit with the Title Company an earnest money deposit in the amount set forth in
Section 1.1(h) above (the “Earnest Money Deposit”). The Earnest Money Deposit shall be in cash or other
immediately available funds reasonably acceptable to Seller. The Title Company shall hold and disburse the
Earnest Money Deposit in strict compliance with this Agreement and the Escrow Agreement Rider in
substantially the form attached hereto and incorporated herein as Exhibit “E” (“Escrow Agreement”), which
must be executed by both parties prior to or upon deposit of the Earnest Money Deposit. Upon payment
and/or receipt of the Earnest Money Deposit (as applicable), the Buyer and the Title Company shall each
immediately provide Seller with notice thereof by mail, fax, or e-mail. A form for acknowledging Receipt of the
Earnest Money Deposit is attached hereto for convenience, however, the attached form is not required for
effective notice. The Earnest Money Deposit shall be credited to the Purchase Price and paid to Seller at
Closing, or as otherwise provided for in this Agreement.
Buyer shall direct the Title Company to invest the Earnest Money Deposit in an interest bearing account
in a financial institution insured by the Federal Deposit Insurance Corporation and chosen by Buyer, with such
account having a maturity date not later than the Closing Date (hereinafter defined). All interest earned on the
Earnest Money Deposit shall be credited or paid to the party that is entitled to the Earnest Money Deposit
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pursuant to this Agreement. Buyer and Seller agree that prior to Buyer's deposit of the Earnest Money Deposit
with the Title Company, Seller shall have no obligation or liability under this Agreement, and that Buyer's
obligation to deposit the Earnest Money Deposit is an express condition precedent to Seller's obligation and
liabilities under this Agreement. In the event that the Earnest Money Deposit is not received by the Title
Company on the Agreement Date, this Agreement shall be deemed null and void with neither party having any
further obligation to the other.
ARTICLE III
REVIEW OF TITLE, SURVEY, OWNERSHIP DOCUMENTS, AND ESTOPPEL CERTIFICATES
3.1
Title Commitment. Within fourteen (14) days after the Agreement Date of this Agreement, Seller
shall furnish to Buyer, at Seller's expense, a current commitment (including copies of all exception documents)
for an owner's title insurance policy ("Commitment") issued by the Title Company, setting forth the state of
title to the Property and all exceptions including: easements, restrictions, rights of way, covenants,
reservations, and other conditions, if any, affecting the Property which would appear in an owner's title policy,
if issued. No representations or warranties are made by or shall be made or given by Seller with respect to the
Commitment or the information contained therein.
NOTICE
In accordance with the requirements of Section 28 of the Texas Real Estate License Act, Buyer is
hereby advised that it should be furnished with or obtain a policy of title insurance.
3.2
Ownership Documents. Within fourteen (14) days after the Agreement Date of this Agreement,
Seller shall, if available, furnish to Buyer true and correct copies of the items listed below (collectively, the
"Ownership Documents"), which are in Seller’s immediate possession or control:
(a) the most complete set of plans, specifications, engineering reports, and plat plans for the
Improvements (if any);
(b) annual income and expense statements for Seller’s period of ownership;
(c) maintenance or service agreements (i) that are directly and solely applicable to the maintenance or
service of the Land and Improvements; and (ii) that permit assignment upon sale; and 1
(d) documents relating to any litigation affecting the Property.
3.3
Survey. Within twenty (20) days after the Agreement Date, Seller shall at Seller’s sole cost and
expense, cause to be delivered to Buyer a current plat of survey (“Survey”) of the Land, prepared by a duly
licensed Texas land surveyor acceptable to Seller and Buyer. The Survey shall be in form reasonably
acceptable to Buyer and Title Company, such that Title Company may delete the survey exception from the
title policy to be issued. The survey shall show the legal description, boundary lines and the location of all
improvements, highways, streets and roads (including the right-of-way and pavement widths of each),
railroads, rivers, creeks, or other water courses, fences, flood plain (as defined by the Federal Insurance
Administration), easements, and rights-of-way on or adjacent to the Land and shall set forth the number of
total acres and square feet. No representations or warranties are made or given by Seller with respect to the
Survey or the information contained therein.
3.4
Tenant Estoppel Certificates. If applicable, within twenty (20) days after the Agreement Date,
Seller shall at Seller’s sole expense, cause to be delivered to Buyer duly executed estoppel certificates in a
form reasonable acceptable to Buyer from each of the tenants under the Leases.
ARTICLE IV
CONDITIONS
4.1
Inspection Period.
1 Seller shall have no obligation to produce copies of contracts or agreements that (i) contain a non-disclosure or
confidentiality provision that prohibits disclosure; (ii) those that contain terms applicable to property or facilities not
included in this transaction; or (iii) are solely applicable to Seller’s business operations.
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(a) Buyer shall have a period of time, as set forth in Section 1.1(i) above (the “Inspection
Period”), to examine the Property, Commitment, Survey, Estoppel Certificates (if any), and
the Ownership Documents (the “Property Inspection”). The Property Inspection may
include any matters that Buyer finds relevant to its decision to purchase the Property.
Buyer agrees that if it elects to have a Phase I environmental site assessment performed
on the Property that it will provide Seller with a copy of said report. Seller shall assist Buyer
in gaining access to the portion of the Property occupied under any Leases, if applicable,
so that any inspecting engineer retained by Buyer can conduct those on-site structural
inspections it deems necessary in order to conclude that the improvements are structurally
sound. All inspections and studies conducted by Buyer or at Buyer's direction, unless
otherwise stated herein, shall be at Buyer's sole cost and expense. In conducting such
inspections, Buyer shall not unreasonably interfere with the use or occupancy of the
Property and/or Land. Seller shall cooperate with Buyer in connection with any inspections
Buyer may desire to conduct with respect to the Property during the Inspection Period.
Buyer agrees to indemnify Seller and hold Seller harmless from and against any injury,
damage, loss, cost or expense related to or arising out of Buyer's Property Inspection
pursuant to this Section, including, but not limited to, costs of repairing any damage to the
Property, Land, Improvements and/or Personal Property. After the expiration of the
Inspection Period, the sole obligation of Seller, except as provided herein, shall be to
deliver possession of the Property in the same condition as existed on the date of
termination of the Inspection Period (ordinary wear and tear excepted).
(b) Buyer shall not, under any circumstances, make any independent contact with any tenant
of Seller, without Seller’s prior written consent. For purposes of this section “tenant” shall
include any past or present tenant as well as any party that is currently in any negotiations
with Seller that are in any way related to the Property. However, Buyer may, at any time
from the Effective Date of this Agreement up to Closing, request a meeting or the
opportunity to contact, any tenant of Seller. All such requests shall be made to Seller’s
Property Manager (“Manager”), and a representative of Manager shall be present at all
meetings between Buyer and any tenant and any other form of communication between
Buyer and tenants, in any form whatsoever, shall be through Manager. Manager’s role in
such communications shall be to protect the interest of Seller, therefore, Manager may
read, and refuse to convey any message from Buyer to any tenant, withhold approval for a
requested meeting, or terminate any meeting, if in Manager’s reasonable discretion,
Manager determines that such communication will be detrimental to Seller’s interests or
would otherwise not be in keeping with the spirit and intent of this Agreement.
(c) In the event the Buyer does not elect to terminate the Agreement (as provided herein),
BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE
DEED, THE BILL OF SALE, THE ASSIGNMENT OF WARRANTIES, OR THE
ASSIGNMENT OF LEASES, THE PROPERTY, INCLUDING BUT NOT LIMITED TO THE
PERSONAL PROPERTY, IS BEING CONVEYED HEREUNDER "AS IS, WHERE IS, AND
WITH ALL FAULTS", WITHOUT ANY REPRESENTATION OR WARRANTY BY SELLER
AND THE PERSONAL PROPERTY IS BEING SOLD AND ASSIGNED HEREUNDER
ONLY TO THE EXTENT THAT IT MAY BE OWNED BY THE SELLER AND USED IN THE
OPERATION OF THE PROPERTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR
IN THE DEED, THE BILL OF SALE, THE ASSIGNMENT OF WARRANTIES, OR THE
ASSIGNMENT OF LEASES, SELLER HAS NOT MADE AND IS NOT MAKING ANY
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR
WARRANTY REGARDING QUALITY OF CONSTRUCTION, WORKMANSHIP,
CONDITION, STATE OF REPAIR, SAFETY, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE, ACCURACY OF DIMENSIONS, WHETHER THE
IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION OR IN
COMPLIANCE WITH APPLICABLE CITY, COUNTY, STATE OR FEDERAL STATUTES,
CODES, OR REGULATIONS, INCLUDING, WITHOUT LIMITATION, TO HAZARDOUS
MATERIALS OR ANY ENVIRONMENTAL MATTERS AND THE AMERICANS WITH
DISABILITIES ACT, OPERATION OF MECHANICAL SYSTEMS, EQUIPMENT AND
FIXTURES, SUITABILITY OF SOIL OR GEOLOGY, ABSENCE OF DEFECTS OR
HAZARDOUS OR TOXIC MATERIALS OR WASTES, ANY PAST, PRESENT OR
FUTURE OPERATING RESULTS, INCLUDING BOTH INCOME AND EXPENSES, ANY
PROJECTIONS WITH RESPECT TO OPERATING RESULTS, THE FINANCIAL
VIABILITY OF THE PROPERTY, OR THE COMPLETENESS OR ACCURACY OF ANY
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BOOKS OR RECORDS OF SELLER PERTAINING TO THE PROPERTY, AND BUYER
ACKNOWLEDGES THAT BUYER ACCEPTS THIS PROPERTY WITHOUT RELYING
UPON ANY SUCH REPRESENTATION OR WARRANTY BY SELLER OR BY ANY
OTHER PERSON AND BASED SOLELY UPON BUYER'S OWN INSPECTIONS,
INVESTIGATIONS AND FINANCIAL ANALYSIS OF THE PROPERTY.
4.2
Seller’s Cure Period. On or before the end of the Inspection Period, Buyer shall deliver written
notice to Seller of all exceptions it may have based upon the Commitment and the Survey that are not
accepted by Buyer (“Disapproved Exceptions”). Any exceptions reflected in the Commitment or the Survey
to which Buyer does not object to, take exception to or which Buyer waives, shall be deemed “Permitted
Exceptions”. Seller shall have the right, but not the obligation, to cure any or all of Buyer’s Disapproved
Exceptions. Seller shall have no obligation to provide Buyer with any response to the Disapproved Exceptions
and Seller’s failure to respond to Buyer’s notice of the Disapproved Exceptions shall in no way constitute an
expressed or implied agreement to cure such Disapproved Exceptions or to convey the Property free and clear
of the Disapproved Exceptions or any other matters to which Buyer has objected. Notwithstanding the
foregoing, Seller shall be obligated, at or prior to Closing, to cure any objections raised by Buyer which are
based on encumbrances voluntarily placed on the Property by Seller after the effective date (as opposed to
the “issue date”) of the Title Commitment.
4.3
No Further Contracts. From the Effective Date until the Closing Date or the earlier termination of this
Agreement, Seller shall:
(a)
maintain and operate the Property in the same manner in which the Property was
operated as of the Effective Date, and will not knowingly permit to be committed any
waste on the Property;
(b)
continue all Leases, if applicable, and insurance policies relative to the Property in
full force and effect;
(c)
neither cancel, amend, enter into nor renew any lease, without the written consent of
Buyer (which consent will not be withheld unreasonably and notice of which approval
or disapproval shall be provided to Seller within five (5) days from Seller's
presentment to Buyer of the lease at issue);
(d)
not knowingly enter into any agreement or instrument which would constitute an
encumbrance on the Property without prior written consent of Buyer (which consent
will not be withheld unreasonably and notice of which approval or disapproval shall
be provided to Seller within five (5) days from Seller's presentment to Buyer of the
agreement or instrument at issue); and,
(e)
not remove Personal Property owned by Seller from the Land, Improvements and/or
Property.
In the event that Buyer does not provide Seller with notice as required by this subsection, within
the time set forth herein, the requirement to obtain Buyer's approval shall be deemed to have been waived by
Buyer. Buyer hereby assumes the obligation to pay its pro rata share of any commission due on any new
lease or lease renewal that is executed by Seller with Buyer’s written consent prior to Closing. Each party’s
pro rata share of any commission owed shall be paid to the party earning such commission prior to closing or
adjustment therefore shall be made at Closing.
ARTICLE V
BUYER'S REPRESENTATIONS AND WARRANTIES
5.1
Buyer represents and warrants to Seller the following statements are true on the Agreement
Date of this Agreement and will be true on the Closing Date:
(a) Buyer's Power and Authority. Subject to Board Approval and the requirements of Section
271.004 of the Texas Local Government Code, which qualification shall only apply as of the
date of this Agreement, Buyer and its representatives have all power and authority legally
necessary to enter into this Agreement, execute and deliver the Closing documents and
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(b) No Actions Against Buyer. Buyer knows of no action, suit or proceeding, pending or
threatened against Buyer, which would, if determined against Buyer, adversely and
materially affect Buyer's ability to perform its obligations under this Agreement.
(c) Compliance With Laws. Buyer is not, and Buyer is not engaged in this transaction on
behalf of, a person or entity with which Seller is prohibited from doing business pursuant to
any law, regulation or executive order (“Laws”) pertaining to national security and; Buyer
has not violated and, to the best of Buyer’s knowledge Buyer is not under investigation for,
the violation of any Laws pertaining to money laundering, as those Laws are more
particularly described in the footnote below.2
(d)
No Violations. The performance by Buyer of Buyer’s obligations and agreements
contained in this Agreement will not result in a breach of any agreement to which Buyer is a
party or by which Buyer is bound which would have a material adverse effect on Buyer’s
performance of its obligations under this Agreement.
Buyer's tender of performance of its obligations under this Agreement shall constitute Buyer's
confirmation that the above representations and warranties are then also true and correct. Any breach of the
above representations and warranties will render this Agreement voidable by the non-breaching party effective
upon receipt of written notice of termination. The non-breaching party shall be entitled to recover any and all
costs and expenses incurred as a result of such breach, including reasonable attorney’s fees, costs and
expenses.
ARTICLE VI
SELLER'S REPRESENTATIONS AND WARRANTIES
6.1
Seller warrants and represents the following are true and correct as of the Closing Date
(hereinafter defined).
(a) Seller's Power and Authority. Seller and its representatives have all power and authority
legally necessary to enter into this Agreement, execute and deliver the Closing documents,
and sell and convey the Property in accordance with this Agreement’s terms. The execution
and delivery of the Agreement requires no further action or approval in order to render this
Agreement a binding and enforceable obligation of Seller.
(b) No Actions Against Seller. To the best of Seller's knowledge, no litigation or proceeding is
pending or threatened relating specifically to the Property which if adversely determined,
could have a material adverse effect on title to and/or the use, or which could, in any way,
interfere with the consummation of this Agreement. To Seller’s actual knowledge, without
any duty to investigate, Seller is not in default with respect to any order or decree of any
court of any governmental agency or instrumentality affecting the Property.
(c) Compliance With Laws. Seller is not, and Seller is not engaged in this transaction on
behalf of, a person or entity with which Buyer is prohibited from doing business pursuant to
any Laws pertaining to national security and; Seller has not violated and, to the best of
Seller’s knowledge Seller is not under investigation for, the violation of any Laws pertaining
to money laundering, as those Laws are more particularly described in the footnote below.2
2 “Laws”, as referenced above, shall specifically include, but shall not limited to, the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and obstruct Terrorism Act of 2001, Pub. L. No. 107-56 (aka, the
USA Patriot Act); Executive Order 13224; the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq.; the Trading with the
Enemy Act, 50 U.S.C. App. Section 1 et. seq.; the International Emergency Economic Powers Act, 50 U.S.C. Section
1701 et. seq.; sanctions and regulations promulgated pursuant thereto by the Office of Foreign Assets Control (“OFAC”),
as well as laws related to the prevention and detection of money laundering in 18 U.S.C Sections 1956 and 1957.
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(d) Parties in Possession. To Seller’s actual knowledge, without duty to investigate, there are
no parties in possession of any portion of the Property except as have been disclosed in
writing to Buyer.
(e) No Violation. Seller’s execution and delivery of and performance and compliance with this
Agreement will not result in the violation of or be in conflict with or constitute a default under
any term or provision of any charter, bylaw, mortgage, indenture, contract, agreement,
instrument, judgment, decree, order, statute, rule, or regulation of which Seller has actual
knowledge or result in the creation of any mortgage, lien, encumbrance, or charge upon
any of the Property pursuant to any such term or provision.
Seller's tender of performance of its obligations under this Agreement shall constitute Seller's
confirmation that the above representations and warranties are then also true and correct. Any breach of the
above representations and warranties will render this Agreement voidable by the non-breaching party effective
upon receipt of written notice of termination. The non-breaching party shall be entitled to recover any and all
costs and expenses incurred as a result of such breach, including reasonable attorney’s fees, costs and
expenses.
ARTICLE VII
CONFIDENTIALITY/ NONDISCLOSURE
7.1
Subject to open records laws, neither party shall disclose to any person or entity the terms of
this Agreement or the identity of the parties (except as required to fulfill its obligations hereunder) and shall not
issue any press or other informational releases without the express written consent of each party. In addition
to the foregoing, Buyer and its representatives shall hold in strictest confidence all data and information
obtained with respect to the operation and management of the Property, whether obtained before or after the
execution and delivery hereof, and shall not use such data or information for purposes unrelated to this
Agreement or disclose the same to others except as expressly permitted hereunder. The preceding sentence
shall not be construed to prevent Buyer from disclosing to its agents, consultants and lenders such information
with respect to the Property as is necessary for such agents, consultants and lenders to perform their
designated tasks in connection with Buyer's inspection of the Property, so long as the Buyer requests such
agents, consultants and lenders to keep such information confidential. However, neither party shall have this
obligation concerning information which: (a) is published or becomes publicly available through no fault of
either the Buyer or Seller; (b) is rightfully received from a third party; or (c) is required to be disclosed by law.
In the event this Agreement is terminated or Buyer fails to perform hereunder, Buyer shall promptly
return to Seller all originals and copies of all statements, documents, schedules, exhibits or other written
information obtained from Seller in connection with this Agreement or the transactions contemplated hereby
(including all originals and copies of all provided to agents, consultants and/or lenders). In the event of a
breach or threatened breach by Buyer or its agents, consultants and/or lenders of this paragraph, Seller shall
be entitled to an injunction restraining Buyer or its agents, consultants and/or lenders from disclosing, in whole
or in part, such confidential information. Nothing herein shall be construed as prohibiting Seller from pursuing
any other available remedy at law or in equity for such breach or threatened breach.
ARTICLE VIII
CLOSING
8.1
Date and Place of Closing. The Closing ("Closing") shall occur in escrow, with the Title
Company acting as escrow agent. The “Closing Date” shall be the date set forth in Section 1.1(j) above;
however, Seller and Buyer may mutually designate an earlier date for Closing.
8.2
Seller's Closing Obligations. At the Closing or as provided below, Seller shall, at Seller’s sole
expense, deliver to Buyer, each of the following items:
(a) a proforma Texas Owner’s Title Policy issued by the Title Company ("Title Policy") in
Buyer's favor in the full amount of the Purchase Price, insuring Buyer's fee simple title to
the Property and in and to any easements and restrictions that inure to the benefit of the
Property, subject only to the Permitted Exceptions, and including deletion of the survey
exception (provided, however, that Seller shall not be responsible for the cost of any
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endorsements to the Title Policy requested by Buyer or Buyer’s lender, as such costs shall
be at Buyer’s sole expense);
(b) a special warranty deed ("Deed"), duly executed and acknowledged by Seller, and in form
for recording, conveying good and indefeasible fee simple title to the Property to Buyer,
free and clear of all liens, claims, easements, rights-of-way, restrictions, encroachments, or
oil, gas, or mineral leases or reservations that are not Permitted Exceptions;
(c) a Bill of Sale transferring all of the Personal Property "As Is" "Where Is" and "With All
Faults" and an assignment of the Personal Property in substantially the form attached
hereto and incorporated herein as Exhibit “B” (“Bill of Sale”);
(d) an Assignment of all Warranties, Guaranties, Service Contracts, and Plans for any
assignable warranties, guaranties, service contracts, or plans Buyer elects in its sole
discretion to take an assignment of (the “Warranties, Guaranties, Service Contracts, and
Plans”) in substantially the form attached hereto and incorporated herein as Exhibit “C”
(“Assignment of Warranties”);
(e) all keys to the Property in Seller's possession;
(f) if applicable, an assignment of all Leases in substantially the form attached hereto and
incorporated herein as Exhibit ”D” (“Assignment of Leases”);
(g) if applicable, all executed originals of the Leases in Seller's possession (or copies of any
Leases for which Seller does not have an original) and all tenant deposits under such Leases;
and
(h) such additional documents or agreements as may be reasonably required by the Title
Company to verify the due authorization, execution and delivery by Seller of the Deed and such
additional documents as may be required to effectuate the transaction contemplated hereby.
8.3
Adjustments at Closing. All state, county, and municipal taxes for the year 2011 relating to the
Property shall be calculated in accordance with Section 26.11 of the Texas Tax Code and shall be collected
from Seller by the Title Company and paid by the Title Company to the appropriate taxing jurisdictions in
accordance with Section 26.11 of the Texas Tax Code. Seller shall be responsible for all rollback tax liability
triggered by actions of Seller prior to the Closing Date only. Buyer does not hereby waive any exemption or
other exception it, or the Property, may have from rollback taxes pursuant to Texas Tax Code §23.55(f) or
other applicable law. Any maintenance charges, rent, owners association assessments, expense escalation
reimbursements, utilities, service and employment contracts (if Buyer is to assume any), and all other
expenses shall be prorated by the Title Company, effective as of the Closing Date.
In the event that exact, final figures are not reasonably available, the prorated adjustments shall be
estimated and based on the most recent and most accurate data available. All prorated adjustments shall be
charged or credited to Buyer or Seller (as applicable) at Closing and shall be final. Buyer and Seller shall also
pay prior to Closing, or make adjustment at Closing, for each party’s pro rata share of any outstanding lease
commissions due and payable pursuant to Section 4.3 above.
NOTICE REGARDING POSSIBLE TAX LIABILITY
If, for the current ad valorem tax year, the taxable value of the Land is determined by a special
appraisal method that allows for appraisal of the Land at less than its market value, the person to whom the
Land is transferred may not be allowed to qualify the Land for that special appraisal in a subsequent tax year
and the Land may then be appraised at its full market value. In addition, the transfer of the Land or a
subsequent change in the use of the Land may result in the imposition of an additional tax plus interest as a
penalty for the transfer or the change in the use of the Land. The taxable value of the Land and the applicable
method of appraisal for the current tax year is public information and may be obtained from the tax appraisal
district established for the county in which the Land is located.
8.4
Buyer's Closing Obligations. At Closing, Buyer shall execute those Closing documents to which
Buyer is a party and direct the Title Company to remit to Seller the Purchase Price, plus any other sums
required to be paid by Buyer, in accordance with this Agreement.
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8.5
Possession and Closing. Notwithstanding anything contained herein, exclusive possession of
the Property shall be delivered to Buyer by Seller at Closing, subject to the leasehold interests of any tenants.
8.6
Closing Costs. Unless otherwise specified in this Agreement, all costs and expenses of Closing
shall be allocated equally between Seller and Buyer. Each party will be responsible for its own legal fees
except in the event of default.
ARTICLE IX
TERMINATION, DEFAULTS AND REMEDIES
9.1
Termination by Buyer. Buyer may notify Seller and Title Company in writing on or before 5:00
P.M. Eastern Standard Time (“EST”) on the expiration date of the Inspection Period of its intention to terminate
this Agreement. Buyer may terminate this Agreement for any reason or for no reason on or before such time,
in which case the Earnest Money Deposit shall be refunded to Buyer. In addition, Seller acknowledges that
Buyer must obtain approval of this Agreement by the Plano Independent School District Board of Trustees
(“Board Approval”) prior to Closing. If Board Approval (conditioned upon completion of the requirements set
forth in Section 271.004 of the Texas Local Government Code) is not obtained prior to expiration of the
Inspection Period, this Agreement shall terminate and, notwithstanding any provision in this Agreement to the
contrary, the Earnest Money Deposit shall be refunded to Buyer. If Buyer fails to provide Seller with written
notice of such termination on or before expiration of the Inspection Period, the Buyer shall be deemed to have
chosen not to terminate this Agreement and to have knowingly and voluntarily waived any and all objections
and/or exceptions including but not limited to those in connection with the Property Inspection, the
Commitment, the Survey, school board approval and the Ownership Documents.
Notwithstanding the foregoing, Buyer shall advertise this Agreement such that the required 60-day
statutory notice period required by Section 271.004 of the Texas Local Government Code (“Statutory Notice”)
runs and so that the Closing may take place no later than April 29, 2010. Notwithstanding any provision in this
Agreement to the contrary, if as result of the Statutory Notice the referendum described in Section 271.004 of
the Texas Local Government Code is required and the parties are notified as such after expiration of the
Inspection Period, Buyer shall have the right to terminate the Agreement solely on this basis and the Earnest
Money Deposit, together with any interest earned thereon, shall be refunded to Buyer. Buyer shall include with
its notice to Seller to terminate a copy of the written petition requiring the referendum described in Section
271.004 of the Texas Local Government Code. If this Agreement is terminated, except as otherwise expressly
provided for herein, the Agreement shall have no further force and effect and neither Buyer nor Seller shall
have any further rights, duties and/or obligations to each other pursuant to this Agreement, and Buyer’s
Earnest Money Deposit, together with any interest earned thereon, shall be returned to Buyer.
9.2
Seller's Default; Buyer's Remedies. If Seller defaults under this Agreement for any reason
(other than Buyer's default or a termination of this Agreement by Seller or Buyer pursuant to a right to do so
expressly provided for in this Agreement), Buyer may elect to enforce the specific performance of this
Agreement or terminate this Agreement and receive a refund of the Earnest Money Deposit; provided,
however, in the event specific performance of this Agreement is frustrated due to (a) Seller's conveyance of all
or part of the Property to a third party in breach of this Agreement; or (b) due to Seller's intentionally
encumbering all or any part of the Property with a lien, lease, easement, restriction or other encumbrance after
the date of this Agreement, which was objected to by Buyer and not eliminated at or prior to Closing or was not
disclosed in writing to Buyer, then Buyer may pursue any remedies available to Buyer at law or in equity.
9.3
Buyer's Default; Seller's Remedy. If Buyer fails to perform its closing obligations under this
Agreement for any reason (other than an uncurable, material default by Seller or a termination of this
Agreement by Seller or Buyer pursuant to a right to do so expressly provided for in this Agreement), Seller
may, as Seller's sole and exclusive remedy, terminate this Agreement and retain the Earnest Money Deposit
as liquidated damages for breach of this Agreement. Upon Title Company’s receipt of written notice from
Seller that Buyer has defaulted and Seller has terminated this Agreement (a copy of which shall be delivered
to Buyer), the Title Company, without requiring any further authorization from Buyer, shall immediately deliver
the Earnest Money Deposit to Seller. Such amount is agreed upon by and between Seller and Buyer as
liquidated damages due to the difficulty and inconvenience of ascertaining and measuring actual damages and
the uncertainty thereof, and the payment of the Earnest Money Deposit shall constitute full satisfaction of
Buyer's obligations under this Agreement. Such amount is agreed upon by and between Seller and Buyer as
a reasonable estimate of just compensation for the harm caused by Buyer's default. In the event of a dispute
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over the disposition of the Earnest Money Deposit, the aggrieved party shall have any and all remedies
available to it in a court of law.
ARTICLE X
DAMAGE OR DESTRUCTION PRIOR TO CLOSING
10.1
In the event that any part or portion of the Property should be damaged by any casualty prior to
Closing, and if the cost of repairing such damage, as estimated by an independent contractor ("Independent
Contractor") retained by Buyer (and approved by Seller, which approval shall not be withheld unreasonably or
unduly delayed) is:
(a) less than FIFTY THOUSAND U.S. DOLLARS (US$50,000.00), then, at Seller's option: (i)
Seller shall repair such damage prior to the Closing Date, restoring the damaged Property
at least to its condition immediately prior to such damage, or (ii) elect to close the
transaction and Buyer shall receive a credit at Closing in an amount necessary to make
such repairs as determined by the Independent Contractor; or,
(b) if said cost is equal to or more than FIFTY THOUSAND U.S. DOLLARS (US$50,000.00)
then the Buyer may elect within twenty (20) days of notification to Buyer of such occurrence
to (i) terminate this Agreement or (ii) require Seller to assign to Buyer at Closing, all
insurance proceeds payable for such damage, and pay to Buyer at Closing the amount of
any deductible required by Seller's insurance policies, and the sale shall be closed without
the Seller's repairing such damage.
ARTICLE XI
CONDEMNATION
11.1
Eminent Domain. If prior to the Closing Date a material portion of the Property shall be taken by
any governmental authority under the power of eminent domain or by any private organization possessing the
power of eminent domain, Buyer shall have the option of terminating Buyer’s obligations under this Agreement
or electing to have this Agreement remain in full force and effect. Such option must be exercised within ten
(10) days after receipt of notice delivered to Buyer of such condemnation or sale. In the event Buyer does not
terminate Buyer’s obligations under this Agreement, at Closing, Seller shall assign to Buyer any and all claims
for the proceeds of such condemnation or sale to the extent the same are applicable to the Property, and
Buyer shall take title to the Property with the assignment of such proceeds and subject to such condemnation
and without reduction of the Purchase Price. If Buyer elects to terminate this Agreement under the provisions
of this Article, the Earnest Money Deposit shall be returned to Buyer and the parties hereto shall thereafter be
released of any obligation or liability by reason of the execution of this Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1
Brokers’ Commissions. If and when the Closing occurs, Seller hereby agrees to pay a
commission to the Buyer’s Representative and the Seller’s Representative designated in Section 1.1(k) above
(collectively, the “Brokers”) for its services in connection with this Agreement. The payment to Seller’s
Representative shall be pursuant to the terms and conditions of a separate contract between Seller and
Seller’s Representative. The payment to Buyer’s Representative shall be in accordance with the terms of
Section 1.1(k) above. Seller and Buyer each represent and warrant to the other that there are no claims for
broker's commissions or finder's fees in connection with the execution and delivery of this Agreement other
than that of the Brokers identified in section 1.1(k), and Seller and Buyer each agree to indemnify the other
against and hold the other harmless from and against all liabilities, costs and/or damages arising from a
breach of the representation and warranty made by such party herein, including, without limitation, reasonable
attorneys' fees and expenses and related court costs.
12.2
Assignment. Buyer may not assign this Agreement without Seller's prior written consent, which
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing prohibition on assignment, Seller
shall consent to a one (1) time assignment of this Agreement to an entity organized by Buyer specifically for
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that purpose provided, however, that Seller receives, no later than fifteen (15) days before the scheduled
Closing Date, an executed assignment in a form that is reasonably acceptable to Seller and that designates
the legal name of the transferee that is to appear on all transfer documents as the Buyer. Attempts to make
an assignment of the Agreement within 15 days of Closing must be accompanied by payment of Five Hundred
Dollars ($500.00) to Seller to cover the costs associated with redrafting closing documents and performing the
appropriate level of due diligence on Buyer.
12.3
Notices. Any notice, approval, waiver, objection or other communication (collectively, “Notice")
required or otherwise given in regards to this Agreement by one party to the other, shall be in writing and shall
be delivered by one of the following methods and deemed effective: (a) if sent via commercial overnight or
express delivery or courier service (i.e. FedEx or UPS), upon receipt or refusal of delivery by the other party;
(b) if sent via facsimile transmission (with proof of successful transmission), upon receipt; or (c) if by electronic
means, when receipt of the Notice is acknowledged, in writing, by the party to whom notice is to be given. Any
party may change its address for Notice by providing notice in accordance with this section.
12.4
Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire
agreement between Seller and Buyer, and there are no other covenants, agreements, promises, terms,
provisions, conditions, undertakings, or understandings, either oral or written, between them concerning the
Property other than those herein set forth. No subsequent alteration, amendment, change, deletion or addition
to this Agreement shall be binding upon Seller or Buyer unless in writing and signed by both Seller and Buyer.
12.5
Headings. The headings, captions, numbering system, etc., are inserted only as a matter of
convenience and shall under no circumstances be considered in interpreting the provisions of this Agreement.
12.6
Binding Effect. All of the provisions of this Agreement are hereby made binding upon the
personal representatives, heirs, successors, and assigns of both parties hereto. Where required for proper
interpretation, words in the singular shall include the plural; the masculine gender shall include the neuter and
the feminine, and vice versa. The terms "heirs, executors, administrators and assigns" shall include
"successors, legal representatives and assigns."
12.7
Time of Essence. Time is of the essence of this Agreement.
12.8
Unenforceable or Inapplicable Provisions. If any provision hereof is for any reason
unenforceable or inapplicable, the other provisions hereof will remain in full force and effect in the same
manner as if such unenforceable or inapplicable provision had never been contained herein.
12.9
Applicable Law; Venue. This Agreement shall be construed under and in accordance with the
laws of the State of Texas (without regard to any conflict of laws principles). Venue for any dispute arising
under the terms of this Agreement or with respect to the transactions contemplated by this Agreement shall be
in the courts of the State of Texas located in Collin County, Texas.
12.10 Attorney's Fees. In the event either Buyer or Seller should bring suit against the other in respect
to any matters provided for in this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and court costs incurred in connection with such suit from the other party.
12.11 Authority. Each person executing this Agreement, by his/her execution hereof, represents and
warrants that he/she is fully authorized to do so, and that no further action or consent on the part of the party
for whom he/she is acting is required to render this Agreement binding and enforceable against such party
following execution.
12.12 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be
performed at the Closing, Seller and Buyer agree to perform such other acts, and to execute and/or deliver
such other instruments and documents as either Seller or Buyer, or their respective counsel, may reasonably
require in order to effect the intents and purposes of this Agreement. Further, Seller and Buyer each agree to
deliver to the Title Company affidavits and such other assurances as may reasonably be necessary or
required to enable the Title Company to issue the Title Policy as contemplated in this Agreement.
12.13 Time Periods. Unless otherwise expressly provided, all periods for delivery or review and the
like shall be determined on a "calendar" day basis. If any date for performance, approval, delivery or Closing
falls on a Saturday, Sunday or legal holiday, the time therefor shall be extended to the next business day.
12.14 Survival. The representations, warranties and covenants (except with respect to Section 12.1
and the warranties of title in the Deed, Bill of Sale, Assignment of Warranties, and Assignment of Leases) of
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12.15 Execution in Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of which shall constitute one Agreement. To facilitate
execution of this Agreement, the parties may execute and exchange counterparts of the signature page to this
Agreement by facsimile.
12.16 Execution by all Parties. This Agreement or any negotiations in connection herewith shall have
no binding effect on the parties until executed and delivered by both Buyer and Seller and the Earnest Money
Deposit is received in accordance with Section 2.2 hereof.
12.17 Waiver of Right to Trial by Jury. THE BUYER AND THE SELLER HEREBY WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING
UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH OR (II) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM IN RESPECT OF
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. THE BUYER AND THE SELLER HEREBY AGREE AND
CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[The remainder of this page has been intentionally left blank; signature page follows.]
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SIGNATURE PAGE TO THE PURCHASE AND SALE AGREEMENT BETWEEN
NATIONWIDE LIFE INSURANCE COMPANY
AND
PLANO INDEPENDENT SCHOOL DISTRICT
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the dates written below.
The terms “Agreement Date” and the “Effective Date” of this Agreement are set forth on the first page of this
Agreement.
SELLER:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By: _____________________________________
Gary L. Crawford
Senior Investment Professional
Real Estate Investments
Authorized Signatory
Date Signed by Seller
BUYER:
PLANO INDEPENDENT SCHOOL DISTRICT
an independent school district organized under the
laws of the State of Texas
By: ______________________________________
Date Signed by Buyer
Print Name: _______________________________
Title: _____________________________________
Tax I.D. No.: _____________________________
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Receipt of Earnest Money Deposit
Republic Title, by its duly authorized officer or agent, hereby acknowledges receipt of the Earnest Money
Deposit in the amount of $____________, which was received on the ______day of ____________, 2011, and
accepts all of the obligations associated with the Earnest Money Deposit as set forth in the Agreement
between Nationwide Life Insurance Company (“Seller”) and Plano Independent School District (“Buyer”). The
above date is the “Effective Date” of said Agreement, as that term is defined therein.
Date: _________________, 2011
Republic Title
By:_____________________________________________
Name:__________________________________________
Title:____________________________________________
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EXHIBIT “A”
Description of Real Property
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EXHIBIT “B”
BILL OF SALE
This Bill of Sale (“Bill of Sale”) is made on this ___ day of ___________, 2011 by and between
NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, (“Seller”), and PLANO INDEPENDENT
SCHOOL DISTRICT, an independent school district organized under the laws of the State of Texas,(“Buyer”).
A.
Seller owns certain real property in the City of Plano, County of Collin and the State of
Texas, which is more particularly described in Exhibit “A” to the Agreement referenced below and
incorporated herein by this reference (“Land”), as well as certain improvements and other assets in
connection with the Land (collectively “Property”).
B.
Seller and Buyer have entered in a Purchase and Sale Agreement, dated _____________
______, 2011 (“Agreement”), pursuant to which Seller has agreed to sell and convey to Buyer and
Buyer has agreed to purchase and accept the Property and the Personal Property as that term is
identified and defined in the Agreement, which Personal Property is more particularly listed and
described on Schedule 1 attached hereto and incorporated herein by this reference.
C.
Seller represents and warrants to Buyer that Seller has not previously hereto conveyed,
sold, transferred or assigned Seller’s interest in the Personal Property to any other party other than
Buyer.
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, Seller has executed this Bill of Sale and BARGAINED, SOLD, TRANSFERRED,
CONVEYED and ASSIGNED the Personal Property to Buyer and Buyer has accepted this Bill of Sale and has
purchased and accepted the Personal Property AS IS AND WHEREVER LOCATED, WITH ALL FAULTS
AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, EXPRESS,
IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND THE
WARRANTIES SET FORTH HEREIN, IT BEING THE INTENTION OF SELLER AND BUYER TO
EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES WHATSOEVER, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE, ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR
SAMPLES OF MATERIALS, ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM
DIMINUTION OF CONSIDERATION, ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS,
WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, WITH RESPECT TO THE PROPERTY
AND/OR PERSONAL PROPERTY, WARRANTIES CREATED BY AFFIRMATION OF FACT OR PROMISE
AND ANY OTHER WARRANTIES CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL
CODE AS NOW OR HEREAFTER IN EFFECT IN THE STATE IN WHICH THE PERSONAL PROPERTY IS
LOCATED, OR CONTAINED IN OR CREATED BY ANY OTHER LAW.
[Remainder of page intentionally blank, signature page follows].
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Buyer and Seller have executed this Bill of Sale on the day and year first above written.
SELLER:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By:
Gary L. Crawford
Senior Investment Professional
Real Estate Investments
Authorized Signatory
BUYER:
PLANO INDEPENDENT SCHOOL DISTRICT,
an independent school district organized under the laws of
the State of Texas
By:
Name:
Title:
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SCHEDULE 1
List and Description of Personal Property
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EXHIBIT “C”
ASSIGNMENT AND ASSUMPTION OF WARRANTIES, GUARANTIES, SERVICE CONTRACTS AND
PLANS
THIS ASSIGNMENT AND ASSUMPTION OF WARRANTIES, GUARANTIES SERVICE
CONTRACTS AND PLANS (the "Assignment") is made on this ____ day of __________________, 2011 by
and between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation (“Assignor”), and PLANO
INDEPENDENT SCHOOL DISTRICT, an independent school district organized under the laws of the State of
Texas, (“Assignee”).
A. Assignor owns certain real property in the City of Plano, County of Collin and the State of Texas, more
particularly described in Exhibit “A” to the Agreement referenced below and incorporated herein by this
reference (“Land”), as well as certain improvements and other assets in connection with the Land
(collectively “Property”).
B. Assignor and Assignee have entered into a Purchase and Sale Agreement, dated _______________
____ 2011 (“Agreement”), pursuant to which Assignor has agreed to sell and Assignee has agreed to
purchase the Property on the terms and conditions contained therein.
C. Assignor has made and/or received Service Contracts, Warranties and Guaranties and Plans in
connection with the Property (collectively “Warranties”) as those terms are identified and defined in the
Agreement and which are more particularly listed and described in Schedule 1 attached hereto and
incorporated herein by this reference.
D. Assignor desires to assign to Assignee and Assignee desires to accept and assume the Warranties.
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, Assignor and Assignee agree as follows:
1. From the date hereof, and to the extent that the same are assignable, Assignor hereby transfers, conveys
and assigns to Assignee all of Assignor's right, title, and interest, if any, in and to the Warranties.
2. Assignee hereby accepts and assumes the foregoing assignment by Assignor and assumes and agrees to
perform all of Assignor's covenants, duties and obligations under the Warranties that are to be performed
by Assignee from and after the date hereof.
3. Assignee hereby indemnifies and agrees to hold Assignor harmless from and against any and all costs,
liabilities, losses, damages or expenses, including but not limited to reasonable attorneys’ fees, arising
from the date hereof and arising out of Assignee’s rights, interest, duties and/or obligations under the
Warranties. Assignor hereby indemnifies and agrees to hold Assignee harmless from and against any and
all costs, liabilities, losses, damages or expenses, including but not limited to reasonable attorneys’ fees,
arising prior to the date hereof and arising out of Assignor’s rights, interest, duties and/or obligations under
the Warranties.
4. In the event of any dispute between Assignor and Assignee arising out of the obligations of the parties
under this Assignment or concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses of such dispute, including, without
limitation, reasonable attorneys' fees and costs.
5. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Assignment shall be governed and construed in accordance with the laws of the state where the
Property is located.
7. This Assignment may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same instrument.
8.
Assignor represents and warrants to Assignee that Assignor has not previously hereto conveyed,
sold, transferred or assigned Assignor’s interest in the Warranties to any other party other than
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Assignor and Assignee have executed this Agreement the day and year first above written.
ASSIGNOR:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By:
Gary L. Crawford
Senior Investment Professional
Real Estate Investments
Authorized Signatory
ASSIGNEE:
PLANO INDEPENDENT SCHOOL DISTRICT
an independent school district organized under the laws of
the State of Texas
By:
Name:
Title:
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SCHEDULE 1
List/Description of Warranties, Guaranties, Service Contracts and Plans
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EXHIBIT “D”
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION (the "Assignment") is made on this ______ day of
_________________, 2011 by and between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation (“Assignor”), and PLANO INDEPENDENT SCHOOL DISTRICT, an independent school district
organized under the laws of the State of Texas (“Assignee”).
A. Assignor owns certain real property in the City of Plano, County of Collin and the State of Texas,
which is more particularly described in Exhibit “A” attached to the Agreement referenced below and
incorporated herein by this reference (“Land”) as well as certain improvements and other assets in
connection with the Land (collectively “Property”).
B. Assignor has entered into certain leases (“Leases”) in connection with the Property, which Leases are
more particularly listed and described in Schedule 1 attached hereto and incorporated herein by this
reference.
C. Assignor and Assignee have entered into a Purchase and Sale Agreement, dated _____________
____, 2011 (“Agreement”), pursuant to which Assignor has agreed to sell and convey to Assignee and
Assignee has agreed to accept and assume the Property from Assignor on the terms and conditions
contained therein.
D. Assignor desires to assign its right, title and interest in and to the Leases to Assignee, and Assignee
desires to accept and assume the assignment thereof, on the terms and conditions set forth herein.
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, Assignor and Assignee agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title, and interest in and to the Leases and any and all
tenant deposits under such Leases, if any, and Assignee hereby accepts and assumes such assignment
and assumes all of Assignor's rights, interest, covenants, duties and obligations under and in connection
with the Leases from and after the date hereof, including but not limited to the obligations and duties of
Assignor relating to any tenant deposits and payment of any real estate commissions. Any rental and
other payments due under the Leases shall be prorated between the parties as provided in the
Agreement.
2. Assignee hereby indemnifies and agrees to hold Assignor harmless from and against any and all costs,
liabilities, losses, damages or expenses, including but not limited to reasonable attorneys’ fees, arising
from the date hereof and arising out of Assignee’s rights, interests, liabilities, duties and/or obligations
under the Leases or tenant deposits. Assignor hereby indemnifies and agrees to hold Assignee harmless
from and against any and all costs, liabilities, losses, damages or expenses, including but not limited to
reasonable attorneys’ fees, arising prior to the date hereof and arising out of Assignor’s rights, interests,
duties and/or obligations under the Leases or tenant deposits.
3. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
4. This Assignment shall be governed and construed in accordance with the laws of the state where the
Property is located.
5. This Assignment may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same instrument.
6. In the event of any dispute between Assignor and Assignee arising out of the obligations of the parties
under this Assignment or concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses of such dispute, including, without
limitation, reasonable attorneys' fees and costs.
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7. Assignor represents that all tenant deposits conveyed to Assignee hereunder have been, or will be
promptly hereafter, delivered to Assignee.
Assignor and Assignee have executed this Agreement the day and year first above written.
ASSIGNOR:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By:
Gary L. Crawford
Senior Investment Professional
Real Estate Investments
Authorized Signatory
ASSIGNEE:
PLANO INDEPENDENT SCHOOL DISTRICT,
an independent school district organized under the laws of
the State of Texas
By:
Name:
Title:
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SCHEDULE 1
List and Description of Leases
#589650
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Exhibit “E”
ESCROW RIDER TO PURCHASE AND SALE
AGREEMENT FOR ______________________________________ DATED: _______________________
LIMITATION OF DUTIES OF ESCROW AGENT
Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. Escrow Agent shall have no duty to enforce any obligation of
any person to make any delivery or to enforce any obligation of any person to perform any other act. Escrow Agent shall be under no liability to the other
parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document
or any other person to perform such person's obligations under any such document. Except for amendments to this Agreement hereinafter referred to and
except for the instructions given to Escrow Agent by the parties hereto in accordance with these Escrow Instructions, Escrow Agent shall not be obligated to
recognize any agreement between any or all of the persons referred to herein.
It is understood and agreed that the duties of Escrow Agent are purely ministerial in nature. Escrow Agent shall not be liable to the other parties hereto or to
anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of reasonable judgment,
except for acts of willful misconduct or gross negligence. Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand,
certificate, opinion or advice of counsel(including counsel chosen by Escrow Agent), statement, instrument, report or other paper or document)not only as to its
due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information which is reasonably believed by
Escrow Agent to be genuine and to be signed or presented by the proper person or persons. Except as specifically set forth herein , Escrow Agent shall not
be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a
final judgment or decree of a Texas State court of competent jurisdiction in Collin County, Texas, or a writing delivered to Escrow Agent signed by the proper
party or parties and, if the duties or rights of Escrow Agent are affected, unless it shall give its prior written consent thereto.
DISCLAIMER RE: VALIDITY OF DOCUMENTATION
In its capacity as Escrow Agent, Escrow Agent shall not be responsible for the genuineness or validity of any security instrument, document or item deposited
with it and shall have no responsibility other than to faithfully follow the instructions contained herein, and shall not be responsible for the validity or
enforceability of any security interest of any party and it is fully protected in acting in accordance with any written instrument given to it hereunder by any of the
parties hereto and reasonably believed by Escrow Agent to have been signed by the proper person. Escrow Agent may assume that any person purporting to
give any notice hereunder has been duly authorized to do so.
TAX CONSEQUENCES
Escrow Agent shall not be responsible for guaranteeing any income tax benefits nor shall it provide any advice as to the income tax consequences or liabilities
of placing funds with Escrow Agent. Escrow Agent shall report or cause to be reported the amount of interest earned on the funds while on deposited and
invested by Escrow Agent in accordance with the W-9 reporting form delivered to it for that purpose.
RESIGNATION OF ESCROW AGENT
Escrow Agent may resign as Escrow Agent hereunder upon giving thirty (30) days' prior written notice to that effect to each of the parties to this Agreement. In
such event, the successor Escrow Agent shall be selected and approved by the parties hereto, which approval will not be unreasonably withheld or unduly
delayed. Such party that will no longer be serving as Escrow Agent shall deliver, against receipt, to such successor Escrow Agent, the Transfer Documents, if
any, held by such party, to be held by such successor Escrow Agent pursuant to the terms and provisions of this Agreement. If no such successor has been
designated on or before the effective date of such party's resignation, the current Escrow Agent shall continue until such successor is appointed; provided,
however, its sole obligation thereafter shall be to safely keep all documents and instruments then held by it and to deliver the same to the person, firm or
corporation designated as its successor or until directed by a final order or judgment of a Texas State court of competent jurisdiction in Collin County, Texas,
whereupon Escrow Agent shall make disposition thereof in accordance with such order or judgment. If no successor Escrow Agent is designated and qualified
within thirty 30 days after Escrow Agent's resignation is effective, such party that will no longer be serving as Escrow Agent may apply to any court of
competent jurisdiction for the appointment of a successor Escrow Agent.
DISPUTES/CIRCUMSTANCES NOT CONTEMPLATED
If any dispute arises with respect to the disbursement of any funds on deposit or if circumstances arise that were not contemplated or described in the original
escrow agreement, and Escrow Agent is unsure as to its duties as a result, Escrow Agent may continue to hold said funds until either in receipt of a joint order
from the parties or a court order directing payment. In such instance, Escrow Agent may elect to commence an action in interpleader and in conjunction
therewith remit the Escrow Deposit to a court of competent jurisdiction pending resolution of such dispute, and the parties hereto hereby indemnify and hold
harmless Escrow Agent for any action taken by it in good faith in the execution of its duties hereunder. The parties further agree that the cost of any such
action shall be deducted from the Escrow Deposit prior to disbursement to the parties.
LITIGATION
All lawsuits in connection with this Escrow Agreement shall be filed in a Texas State court located in Collin County, Texas.
SELLER:
NATIONWIDE LIFE INSURANCE COMPANY
BUYER:
PLANO INDEPENDENT SCHOOL DISTRICT
_________________________________________
By: Gary L. Crawford, Senior Investment Professional
Its: Authorized Signatory
_______________________________________
By:____________________________________
Its: ____________________________________
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