REAL ESTATE PURCHASE AND SALE AGREEMENT (300 Dan Road, Canton, MA)
Exhibit 10.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement (“Agreement”) is entered into as of the Effective Date, as defined below, by and between Stoneridge, Inc., an Ohio corporation (“Seller”) and Sun Life Assurance Company of Canada, a Canadian corporation (“Buyer”).
Seller is the fee owner of that certain Property (as defined below) improved with an approximately 132,560 square foot building (“Building”) situated on approximately 16.13 acres of land (“Land”) located at 000 Xxx Xxxx, in the Town of Canton, Norfolk County, Commonwealth of Massachusetts, all as more particularly described in Exhibit A attached hereto and incorporated herein.
Buyer desires to acquire the Property and Seller is willing to sell the Property, on the terms and conditions set forth herein.
ACCORDINGLY, in consideration of the incorporation of the above recitals and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
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(a) Grant of Access. During the Study Period, Buyer and its agents, employees or contractors shall have the right on reasonable prior notice to Seller, to enter upon the Property during normal business hours, accompanied by a designated representative of Seller to the extent such representative is available, to conduct site visits and reasonably necessary inspections and studies of the Property (at Buyer’s sole cost and expense) in connection with Buyer’s evaluation of the Property in connection with the Transaction (collectively, the “Inspections”). For the avoidance of doubt, Buyer shall not be permitted to perform any intrusive or invasive testing (including, but not limited to, a Phase II environmental assessment or boring), in each case without prior written notice to Seller and written approval by Seller, which approval may be granted or withheld by Seller in its sole discretion. Buyer shall conduct such entry and any Inspections in connection therewith so as to minimize interference with Seller’s business and the business of any of Seller’s tenants, invitees, agents, and contractors, and such entry and any Inspections shall be subject to, and be done in compliance with any terms and conditions contained in any leases with any of Seller’s tenants at the Property. Prior to any entry to perform Inspections, and in addition to Buyer’s prior notice thereof to Seller, Buyer shall provide to Seller the identity of the company(ies) or person(s) who will perform such Inspections and the proposed scope of the Inspections. Seller hereby further grants to Buyer a license during the Study Period (as defined herein) to have access to, and review, such non-proprietary books and records, if any, in the possession of Seller relating to its ownership, and current operation and maintenance of the Property (but without making any representation or warranty as to the accuracy or completeness thereof) including but not limited to copies of any current leases and maintenance contracts, and any prior surveys or title policies applicable to the Property. Notwithstanding anything contained herein to the contrary, without first obtaining Seller’s consent thereto, Buyer shall not (x) contact any tenant of the Property, or (y) notify any governmental agency of any actual or potential violation of any zoning, environmental or other law, rule, or regulation (unless required by applicable, law rule or regulation).
(b) Scope of Work. Buyer, at all times, will conduct all inspections, tests, and reviews in compliance with all applicable federal, state, local or municipal constitution, law, ordinance, rule, order, regulation or statute of any governmental authority bearing on the construction, alteration, rehabilitation, maintenance, use, operation, sale, transfer or any other aspect of all or any portion of the Property, and in a manner so as to not cause damage, loss, lien, cost or expense to Seller or the Property
(c) Restoration. Promptly following completion of the Inspections, Buyer shall at its sole expense cause any and all portions of the Property damaged or altered by or in connection with the Inspections to be repaired and/or restored to substantially the same condition it was in prior to the Inspections. The provisions of this Section 3 shall survive the termination of this Agreement
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(d) Liens. Buyer shall keep the Property free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Buyer with respect to any inspection or testing of the Property by or on behalf of Buyer. If any such lien shall at any time be filed, Buyer shall cause the same to be discharged of record within thirty (30) days after knowledge by Buyer thereof by satisfying the same or, if Buyer in its discretion and good faith determines that such liens should be contested, by obtaining a bond. The provisions of this Section 4 shall survive any termination of this Agreement.
(e) Confidential Information. Buyer agrees that written information disclosed to Buyer by Seller in connection with this Agreement shall be considered “Confidential Information”, and such Confidential Information shall be used by Buyer solely for the purpose of Buyer’s evaluation of the Property. Neither Seller nor any of its officers, employees, agents, representatives or any of their affiliates make any representations or warranties, expressed or implied, as to the accuracy or completeness of any Confidential Information and no legal liability is assumed or shall be implied with respect thereto. The term “Confidential Information” shall not include (i) information that is or becomes available in the public domain on or after the date hereof (other than as a result of disclosure by Buyer or any of its advisors), or (ii) is acquired from a person not known by Buyer to be in breach of an obligation of confidentiality to Seller. Buyer shall not reveal, disclose, disseminate, publish or communicate to any other persons, parties or entities any Confidential Information, without the prior written consent of Seller, which shall be given or withheld in Seller’s sole discretion, other than to Buyer’s direct and indirect partners, members, managers, officers, employees, consultants, attorneys, engineers, licensees, investors, and prospective lenders involved with the Transaction and who have been directed to preserve the confidentiality of such information as required hereby (collectively, “Permitted Outside Parties”). Buyer shall inform any and all Permitted Outside Parties of the scope of the provisions of this Section 4.2. Buyer shall not divulge the contents of any Confidential Information except in connection with a court order or other legal process or legal or administrative proceeding or otherwise in strict accordance with the confidentiality standards set forth in this Section 4.2. In permitting Buyer to review any Confidential Information, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created. Buyer shall also promptly notify Seller in writing of requests for Confidential Information from any regulatory agency or other governmental authority. Upon termination of this Agreement, Buyer will promptly destroy or return all Confidential Information disclosed hereunder in whatever form and shall retain no copy, extract or summary thereof except that Buyer shall be permitted to retain copies consistent with its internal document retention policies subject to the terms and conditions of this Agreement. Upon Seller’s request, Buyer shall certify in writing to Seller that Buyer has complied with its obligations set forth in the preceding sentence. The provisions of this Section 4.2(e) shall survive the termination of this Agreement until the earlier of i) Closing, and ii) for a period of eighteen (18) months (except as provided below).
In addition, and without limiting the other provisions herein, the Lease contains its own confidentiality requirements as follows, and Buyer hereby agrees to be bound by them and not to take any actions which would cause Seller, as landlord under the Lease, to be in default of them (and such obligation of Buyer shall survive the Closing and any termination of this Agreement):
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“Confidential Information. All information specifically labeled as “confidential” or that would reasonably be presumed to be confidential, including the terms and conditions of this Lease and all nonpublic information relating to Tenant’s technology, operations, customers, business plans, promotional and marketing activities, finances, and other business affairs (collectively, “Confidential Information”), that is learned by or disclosed to any Landlord Parties with respect to Tenant’s business in connection with this leasing transaction will be kept strictly confidential by such Landlord Parties and will not be used or disclosed to others without the express prior consent of Tenant, which Tenant may withhold in its sole and absolute discretion; provided that Landlord may (i) use Confidential Information for its confidential internal business purposes; (ii) disclose Confidential Information as required by Legal Requirements; and (iii) disclose the terms and conditions of this Lease to the Landlord Indemnitees, or potential purchasers or lenders, provided that Landlord ensures that parties receiving Confidential Information understand and agree in writing to be bound by the terms of this confidentiality provision.”
(f) Insurance and Indemnity. Prior to any entry onto the Property and during the term of this Agreement, Buyer and Buyer’s contractor(s) (or subcontractor(s)) shall obtain and maintain in full force and effect during the term of this Agreement comprehensive general liability insurance with liability insurance limits of not less than $2,000,000 combined single limit for personal injury and property damage and such insurance shall be issued by insurance companies licensed to do business in the Commonwealth of Massachusetts. Each of such policies shall name (i) Seller, and (ii) CBRE, Inc. (“Seller’s Agent”) as additional insureds thereunder. Copies of each certificate of insurance shall be provided to Seller prior to undertaking any Inspections or any other inspections or assessments pursuant to this Agreement. By Buyer’s execution of this Agreement, Buyer agrees to: (i) indemnify, defend, and hold Seller, and any member, manager, employee, agent or attorney of Seller, Seller’s Agent, and any other party related in any way to any of the foregoing (collectively, the “Indemnitees”), free and harmless from and against any and all costs, loss, damages and expenses, of any kind or nature whatsoever (including attorneys’ fees and costs) arising out of or resulting from the entry and/or the conduct of activities upon the Property by Buyer or its representatives and their employees, agents, representatives, contractors, subcontractors or attorneys at the Property or any breach of this Agreement; provided, however, Buyer’s indemnity obligation hereunder shall not include (a) the mere discovery by Buyer or any of the Permitted Outside Parties of a pre-existing condition or (b) claims and/or liabilities caused by the gross negligence or willful misconduct of any Indemnitee.
4.3 Termination Election. Buyer shall have the option, exercisable in its sole discretion, to terminate this Agreement by written notice to Seller (the “Study Period Termination Notice”) on or before the expiration of the Study Period (if the results of Buyer’s Inspections during the Study Period are not satisfactory to Buyer in any respect in the exercise of Buyer’s sole discretion). In such event, neither party shall have any further liability hereunder except as to any Surviving Obligations. Prior to Seller joining in the direction to Escrow Agent to disburse the Xxxxxxx Money to Buyer, Buyer shall have returned to Seller or agreed to destroy all copies of the Documents.
4.4No Exercise of Termination Election. If Buyer does not deliver the Study Period Termination Notice to Seller on or before the expiration of the Study Period, Buyer shall have waived
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its rights to so terminate this Agreement. Following the expiration of the Study Period, the Xxxxxxx Money shall be non-refundable to Buyer except in the event of Seller’s default or as otherwise specifically provided herein.
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7.2Tenant Security Deposits, Prepaid Rents and Lease Expenses. All Tenant security deposits, utility deposits, and other deposits and prepaid rents shall be delivered to Buyer or at Buyer’s request returned to the tenant that made such deposits. In addition, any prepaid tenant charges or similar fees or estimates shall be reconciled at Closing and any adjustments provided for in the Lease
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will be adjusted at Closing and reflected in the Purchase Price shown on the Closing Statement. Rent for the month of Closing shall be prorated as of the date of the Closing Date. If there is any rent owed for any period prior to the month of Closing, Buyer shall make commercially reasonable efforts to collect such amounts for the benefit of Seller, and upon receipt shall deliver such funds to Seller, provided that amounts received by Buyer in payment of rent may be first applied to current obligations, and provided further that Buyer shall not be obligated to expend any material amounts in such collection efforts nor be obligated to declare a default under the Lease or xxx the Tenant to collect such delinquent amounts.
7.3Other Operating Expenses. All other operating expenses of the Property (if any) due prior to the Closing shall be paid by Seller (to the extent not Tenant’s obligation under the Lease). All other operating expenses of the Property (if any) accruing after midnight on the eve of the Closing Date shall be the responsibility of Buyer.
7.4Adjustments. If any of the items subject to proration hereunder cannot be prorated at the Closing because the information necessary to complete such proration is unavailable, or if any errors or omissions in computing prorations at the Closing are discovered subsequent to the Closing, then such items shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, which obligation shall survive the Closing for a period from the Closing Date until six (6) months after the Closing Date.
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8.8OFAC. Neither Seller nor, to Seller’s Knowledge, any direct or indirect owner of Seller is (a) identified on the OFAC List (as hereinafter defined) or (b) a person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, rule, regulation or Executive Order of the President of the United States. The term “OFAC List” shall mean the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any law, rule, regulation or Executive Order of the President of the United States, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States.
8.9Third Party Contracts. Seller has not entered into any non-recorded agreements relating to the operation and maintenance of the Property, other than the Lease, that are or will be binding on Buyer or the Property following the Closing Date, and Seller agrees to terminate the same effective as of the Closing.
8.10Environmental. To Seller’s knowledge Seller has not received any written notice from any governmental authority that the Property is in current violation of any environmental law.
8.11 Survival. Notwithstanding anything to the contrary contained elsewhere herein, the representations and warranties of Seller set forth in this Section 8 shall survive Closing for a period of six (6) months, provided no action or proceeding thereon shall be valid or enforceable, at law or in equity, unless prior to expiration of such period, written notice thereof is given to Seller which notice includes reasonable detail as to the nature and basis asserted for any such claims, and Buyer thereafter files a legal action thereon within sixty (60) days.
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Stoneridge, Inc., |
00000 XxxXxxxxx Xxxxx, Xxxxx 000,
Email: xxxxxx.xxxx@xxxxxxxxxx.xxx; and xxxxxxx.xxxxx@xxxxxxxxxx.xxx
Arent Fox LLP |
Email: Xxxxxx.Xxxxxx@XxxxxXxx.xxx
Sun Life Assurance Company of Canada |
Email: Xxxxx.Xxxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to: Fox Rothschild LLP
Attention: Xxxxxxx Xxxxxxx, Esq.
Email: xxxxxxxx@xxxxxxxxxxxxx.xxx
The parties hereto shall have the right from time to time to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America by at least five (5) days written notice to the other party.
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17.13No Recording. Neither this Agreement nor any notice or memorandum of this Agreement shall be recorded in any public record and any action taken by Buyer in respect thereof shall constitute a material breach by Buyer, entitling Seller to terminate this Agreement and receive the Xxxxxxx Money. Buyer shall indemnify and save Seller harmless from and against any actual loss, cost, liability, damage, fee or expense, including, without limitation, reasonable attorneys’ fees and expenses, arising out of any recording of this Agreement or any notice or memorandum of this Agreement by Buyer or at its direction.
17.14Tax Deferred Exchange. Seller or Buyer may desire to enter into a like-kind exchange under Section 1031 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, in connection with the Transaction (the “Tax Deferred Exchange”). Each party agrees to cooperate as reasonably requested by the party entering into a Tax Deferred Exchange in connection with any such Tax Deferred Exchange, provided that: (a) neither party shall incur any liabilities in connection with such cooperation or any other matter relating to any Tax Deferred Exchange; and (b) in no event will any matter relating to the Tax Deferred Exchange, including a party’s inability to obtain any benefits of a tax deferred exchange, relieve any party of any of their obligations under this Agreement. In the event either party elects to pursue the Tax Deferred Exchange such party may assign its interest in this Agreement to effectuate such Tax Deferred Exchange and shall promptly so notify the other party, and, upon request, the other party shall acknowledge such assignment and execute such other documents as are reasonably necessary or customarily used to accomplish such like-kind exchanges.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below.
By: /s/ Xxxxxx X. Xxxxxxxxx
Printed Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Chief Financial Officer
Date Executed: May 6, 2021
SUN LIFE ASSURANCE COMPANY OF CANADA
By: BentallGreenOak (U.S.) Limited Partnership, a Delaware limited partnership, its real estate advisor
By: BentallGreenOak (U.S.) GP LLC, a Delaware limited liability company, its General Partner
By: /s/ Xxxxx Xxxxxx
Printed Name: Xxxxx Xxxxxx
Title: Managing Director
Date Executed: May 7, 2021
Printed Name: Xxxxx Xxx
Title: Vice President
Date Executed: May 7, 2021
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Xxxxxxx Money Escrow Provisions
[Attached to and a Part of the Real Estate Purchase and Sale Agreement]
(a)Title Insurer shall hold the Xxxxxxx Money in separate, segregated, interest bearing account(s) approved by Buyer and Seller. If the Closing occurs, the Xxxxxxx Money shall be credited against the Purchase Price. The Xxxxxxx Money shall be held and disbursed by Title Insurer in the following manner:
(i)to Seller upon consummation of the Closing; or
(ii)to Seller upon receipt of written demand therefor, stating that Buyer has defaulted in the performance of Buyer's obligations under this Agreement and the facts and circumstances underlying such default; provided, however, that Title Insurer shall not honor such demand until at least ten (10) Business Days after it has sent a copy of such demand to Buyer, nor thereafter if Title Insurer shall have received written notice of objection from Buyer in accordance with paragraph (b) below; or
(iii)to Buyer upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (y) Seller has defaulted in performance of Seller's obligations under this Agreement and the facts and circumstances underlying such default or that Buyer is otherwise entitled to the Xxxxxxx Money under the provisions of this Agreement; provided, however, that except for a termination pursuant to Section 5.2, Title Insurer shall not honor such demand until at least ten (10) Business Days after it has sent a copy of such demand to Seller, nor thereafter if Title Insurer shall have received written notice of objection from Seller in accordance with paragraph (b) below. Notwithstanding anything to the contrary herein, if at any time before the Study Period Notice Deadline, Buyer provides Title Insurer with written demand for the return of the Xxxxxxx Money, Title Insurer shall immediately return the Xxxxxxx Money to Buyer.
(b)Upon receipt of written demand for the Xxxxxxx Money by Buyer or Seller pursuant to clause (a)(ii) or (a)(iii) above, Title Insurer shall promptly send a copy thereof to the other party. Except for a termination under Section 5.2 (as to which Seller shall have no right to object), the other party shall have the right to object to the delivery of the Xxxxxxx Money by sending written notice of such objection to Title Insurer within ten (10) Business Days after Title Insurer sends a copy of the written demand to the objecting party. Upon receipt of such notice, Title Insurer shall promptly send a copy thereof to the party who made the written demand.
(c)Except for the return of the Xxxxxxx Money to Buyer as provided in the last sentence of Section (a)(iii) above, in the event of any dispute between the parties, Title Insurer shall disregard all instructions received and may hold the Xxxxxxx Money until the dispute is mutually resolved and Title Insurer is advised of this fact in writing by both Seller and Buyer, or Title Insurer is otherwise instructed by a final judgment of a court of competent jurisdiction.
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(d)In the event Title Insurer shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Title Insurer shall be entitled to refrain from taking any action other than to keep safely the Xxxxxxx Money until Title Insurer shall be instructed otherwise in writing signed by both Seller and Buyer, or by final judgment of a court of competent jurisdiction.
(e)Title Insurer may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Schedule 3.1 shall be signed by Title Insurer, Buyer and Seller.
(f)Seller and Buyer shall jointly and severally hold Title Insurer harmless against any loss, damage, liability or expense incurred by Title Insurer not caused by its willful misconduct, gross negligence or breach of these escrow provisions, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding.
(g)Title Insurer may receive certain benefits from the financial institution where the funds are deposited. Based upon the deposit of escrow funds in demand deposit accounts and other relationships with the financial institution, Title Insurer is eligible to participate in a program whereby it may (i) receive favorable loan terms and earn income from the investment of loan proceeds and (ii) receive other benefits offered by the financial institution, but any such benefits derived by Title Insurer shall in no way limit the rights of Seller or Buyer to the Xxxxxxx Money as set forth herein.
(h)The Title Insurer may at its sole discretion resign from its duties as escrow agent by giving (30) days written notice thereof to the parties hereto. The parties shall furnish to the Title Insurer written instructions for the release of the Xxxxxxx Money and escrow documents. If the Title Insurer shall not have received such written instructions within the thirty (30) days, the Title Insurer may petition any court of competent jurisdiction for the appointment of a successor escrow agent and upon such appointment deliver the Xxxxxxx Money and escrow documents to such successor. Costs and fees incurred by the Title Insurer may, at the option of the Title Insurer, be deducted from any funds held pursuant hereto.
Seller and Buyer do hereby certify that they are aware that the Federal Deposit Insurance Corporation ("FDIC") coverages apply only to a cumulative maximum amount of $250,000 for each individual deposit for all of the depositor's accounts at the same or related institution. The parties hereto further understand that certain banking instruments such as, but not limited to, repurchase agreements and letters of credit are not covered at all by FDIC insurance.
Further the parties hereto understand that Title Insurer assumes no responsibility for, nor will the parties hereto hold Title Insurer liable for, a loss occurring which arises from the fact that the amount of the above account may cause the aggregate amount of any individual depositor's
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accounts to exceed $250,000 and that the excess amount is not insured by the Federal Deposit Insurance Corporation or that FDIC insurance is not available on certain types of bank instruments.
By its execution hereof, the Title Insurer hereby (i) covenants and agrees to hold the Xxxxxxx Money in accordance with the above provisions, and (ii) acknowledges receipt of a copy of the Real Estate Purchase and Sale Agreement to which this Schedule 1 is attached.
First American Title Insurance Company
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The land in Canton, in the County of Norfolk, Commonwealth of Massachusetts described as Lot 41 on plan drawn by Xxxxx X. Xxxxxxx, Inc., Surveyor, dated October 24, 1994, as approved by the Land Court, filed in the Land Registration Office as No. 37081P.
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