Exhibit 10.11
4770 Regent Blvd., Irving, TX
PURCHASE AND SALE
AGREEMENT
by and
between
HUB
PROPERTIES TRUST,
as Seller,
and
SENIOR
HOUSING PROPERTIES TRUST,
as Purchaser
May 5,
2008
TABLE
OF CONTENTS
|
SECTION 1.
|
DEFINITIONS.
|
1
|
|
1.1
|
“Agreement”
|
1
|
|
1.2
|
“Business
Day”
|
1
|
|
1.3
|
“Closing”
|
1
|
|
1.4
|
“Closing
Date”
|
1
|
|
1.5
|
“Existing
Survey”
|
1
|
|
1.6
|
“Existing Title
Policy”
|
2
|
|
1.7
|
“Improvements”
|
2
|
|
1.8
|
“Land”
|
2
|
|
1.9
|
“Leases”
|
2
|
|
1.10
|
“Other
Property”
|
2
|
|
1.11
|
“Permitted
Exceptions”
|
2
|
|
1.12
|
“Property”
|
2
|
|
1.13
|
“Purchase
Price”
|
2
|
|
1.14
|
“Purchaser”
|
3
|
|
1.15
|
“Rent
Roll”
|
3
|
|
1.16
|
“Seller”
|
3
|
|
1.17
|
“Title
Company”
|
3
|
|
1.18
|
“Update”
|
3
|
|
|
|
|
|
SECTION 2.
|
PURCHASE AND SALE;
CLOSING.
|
3
|
|
2.1
|
Purchase and
Sale.
|
3
|
|
2.2
|
Closing.
|
3
|
|
2.3
|
Purchase
Price.
|
4
|
|
|
|
|
|
SECTION 3.
|
TITLE, DILIGENCE
MATERIALS, ETC.
|
4
|
|
3.1
|
Title.
|
4
|
|
3.2
|
No Other
Diligence.
|
5
|
|
|
|
|
|
SECTION 4.
|
CONDITIONS TO THE
PURCHASER’S OBLIGATION TO CLOSE.
|
5
|
|
4.1
|
Closing
Documents.
|
5
|
|
4.2
|
Financing.
|
6
|
|
4.3
|
Title
Policy.
|
6
|
|
4.4
|
Environmental Reliance
Letters.
|
6
|
|
4.5
|
Condition of
Property.
|
7
|
|
4.6
|
Other
Conditions.
|
7
|
|
|
|
|
|
SECTION 5.
|
CONDITIONS TO
SELLER’S OBLIGATION TO CLOSE.
|
7
|
|
5.1
|
Purchase
Price.
|
7
|
|
5.2
|
Closing
Documents.
|
7
|
|
5.3
|
Other
Conditions.
|
7
|
|
|
|
|
|
SECTION 6.
|
REPRESENTATIONS AND
WARRANTIES OF SELLER.
|
7
|
|
6.1
|
Status and Authority of
the Seller, Etc.
|
7
|
|
6.2
|
Action of the Seller,
Etc.
|
7
|
|
6.3
|
No Violations of
Agreements.
|
8
|
|
6.4
|
Litigation.
|
8
|
|
6.5
|
Existing Leases,
Etc.
|
8
|
|
6.6
|
Agreements,
Etc.
|
9
|
|
6.7
|
Not a Foreign
Person.
|
10
|
2
|
SECTION 7.
|
REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
|
11
|
|
7.1
|
Status and Authority of
the Purchaser.
|
11
|
|
7.2
|
Action of the
Purchaser.
|
11
|
|
7.3
|
No Violations of
Agreements.
|
11
|
|
7.4
|
Litigation.
|
11
|
|
|
|
|
|
SECTION 8.
|
COVENANTS OF THE
SELLER.
|
12
|
|
8.1
|
Approval of
Agreements.
|
12
|
|
8.2
|
Operation of
Property.
|
12
|
|
8.3
|
Compliance with Laws,
Etc.
|
12
|
|
8.4
|
Compliance with
Agreements.
|
12
|
|
8.5
|
Notice of Material
Changes or Untrue Representations.
|
12
|
|
8.6
|
Insurance.
|
13
|
|
8.7
|
Approval of 2009
Capital Expenditure Budget.
|
13
|
|
|
|
|
|
SECTION 9.
|
APPORTIONMENTS.
|
13
|
|
9.1
|
Real Property
Apportionments.
|
13
|
|
9.2
|
Closing
Costs.
|
16
|
|
|
|
|
|
SECTION 10.
|
DAMAGE TO OR
CONDEMNATION OF PROPERTY.
|
16
|
|
10.1
|
Casualty.
|
16
|
|
10.2
|
Condemnation.
|
16
|
|
10.3
|
Survival.
|
17
|
|
|
|
|
|
SECTION 11.
|
DEFAULT.
|
17
|
|
11.1
|
Default by the
Seller.
|
17
|
|
11.2
|
Default by the
Purchaser.
|
17
|
|
|
|
|
|
SECTION 12.
|
MISCELLANEOUS.
|
17
|
|
12.1
|
Allocation of
Liability.
|
17
|
|
12.2
|
Brokers.
|
18
|
|
12.3
|
Publicity.
|
18
|
|
12.4
|
Notices.
|
18
|
|
12.5
|
Waivers,
Etc.
|
20
|
|
12.6
|
Assignment; Successors
and Assigns.
|
20
|
|
12.7
|
Severability.
|
20
|
|
12.8
|
Counterparts,
Etc.
|
21
|
|
12.9
|
Performance on Business
Days.
|
21
|
|
12.10
|
Attorneys’
Fees.
|
21
|
|
12.11
|
Section and Other
Headings.
|
21
|
|
12.12
|
Time of
Essence.
|
21
|
|
12.13
|
Governing
Law.
|
22
|
|
12.14
|
Arbitration.
|
22
|
|
12.15
|
Like Kind
Exchange.
|
23
|
|
12.16
|
Recording.
|
23
|
|
12.17
|
Non-liability of
Trustees of Seller.
|
23
|
|
12.18
|
Non-liability of
Trustees of Purchaser.
|
24
|
|
12.19
|
Waiver and Further
Assurances.
|
24
|
|
12.20
|
State Specific
Provisions.
|
24
|
3
PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE
AGREEMENT is made as of
May 5, 2008, by and between HUB PROPERTIES TRUST , a
Maryland real estate investment trust (the “ Seller
”), and SENIOR HOUSING PROPERTIES TRUST , a Maryland
real estate investment trust (the “ Purchaser
”).
WITNESSETH
:
WHEREAS,
the Seller is the owner of the
Property (this and other capitalized terms used and not otherwise
defined herein shall have the meanings given such terms in
Section 1 ); and
WHEREAS, the Seller
wishes to sell to the Purchaser, and the Purchaser desires to
purchase from the Seller, the Property, subject to and upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE
, in consideration of the mutual
covenants herein contained and other good and valuable
consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the Seller and the Purchaser hereby agree
as follows:
SECTION 1.
DEFINITIONS .
Capitalized terms
used in this Agreement shall have the meanings set forth below or
in the section of this Agreement referred to below:
1.1
“ Agreement ” shall mean this
Purchase and Sale Agreement, together with any exhibits and
schedules attached hereto, as it and they may be amended from time
to time as herein provided.
1.2
“ Business Day ” shall mean
any day other than a Saturday, Sunday or any other day on which
banking institutions in The Commonwealth of Massachusetts are
authorized by law or executive action to close.
1.3
“ Closing ” shall have the
meaning given such term in Section 2.2 .
1.4
“ Closing Date ” shall have
the meaning given such term in Section 2.2
.
1.5
“
Existing Survey ” shall mean the existing ALTA survey of the
Property.
1.6
“ Existing Title
Policy ”
shall mean, the existing title insurance policy
for the Property.
1.7
“ Improvements ”
shall mean, the Seller’s entire right, title and interest in
and to the existing office buildings, fixtures and other structures
and improvements situated on, or affixed to, the Land.
1.8
“ Land ” shall mean, the
Seller’s entire right, title and interest in and to
(a) the parcel(s) of land described in Schedule A
hereto, together with (b) all easements, rights of way,
privileges, licenses and appurtenances which the Seller may own
with respect thereto.
1.9
“ Leases ” shall mean the
leases identified in the Rent Roll and any other leases hereafter
entered into in accordance with the terms of this
Agreement.
1.10
“ Other Property ”
shall mean the Seller’s entire right, title and interest in
and to (a) all fixtures, machinery, systems, equipment and
items of personal property owned by the Seller and attached or
appurtenant to, located on and used in connection with the
ownership, use, operation or maintenance of the Land or
Improvements, if any, and (b) all intangible property owned by
the Seller arising from or used in connection with the ownership,
use, operation or maintenance of the Land or Improvements, if
any.
1.11
“ Permitted Exceptions ”
shall mean, collectively, (a) liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but
not yet delinquent; (b) the Leases; (c) the exceptions to
title set forth in the Existing Title Policy; (d) all matters
shown on the Existing Survey, and (e) such other nonmonetary
encumbrances with respect to the Property as may be shown on the
Update which are not objected to by the Purchaser (or which are
objected to, and subsequently waived, by the Purchaser) in
accordance with Section 3.1 .
1.12
“ Property
” shall mean, collectively, all of the Land,
the Improvements and the Other Property.
1.13
“ Purchase Price ” shall mean
Eighteen Million Seven Hundred Thirteen Thousand Two Hundred
Fifty-Five Dollars ($18,713,255).
2
1.14
“ Purchaser ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.15
“ Rent Roll ” shall mean
Schedule B to this Agreement.
1.16
“ Seller ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.17
“ Title Company ” shall mean
Lawyers Title Insurance Corporation.
1.18
“ Update
”
shall have the meaning given such term
in Section 3.1 .
SECTION 2.
PURCHASE AND SALE; CLOSING.
2.1
Purchase and Sale. In consideration of the payment of the
Purchase Price by the Purchaser to the Seller and for other good
and valuable consideration, the Seller hereby agrees to sell to the
Purchaser, and the Purchaser hereby agrees to purchase from the
Seller, the Property for the Purchase Price, subject to and in
accordance with the terms and conditions of this
Agreement.
2.2
Closing .
The purchase and sale of the
Property shall be consummated at a closing (the “
Closing ”) to be held at the offices of
Sullivan & Worcester LLP, One Post Office Square, Boston,
Massachusetts, or at such other location as the Seller and the
Purchaser may agree, at 10:00 a.m., local time, on
March 30, 2009, as the same may be accelerated pursuant to
this Section 2.2 (the “ Closing Date
”).
Notwithstanding
the foregoing, either party may accelerate the Closing Date by
giving not less than ten (10) Business Days prior written
notice (an “ Acceleration Notice ”) to the
other, in which event the Closing Date shall be the date set forth
in such Acceleration Notice unless the party receiving the
Acceleration Notice gives written notice objecting to the
accelerated date set forth in the Acceleration Notice (a “
Rejection Notice ”) to the other within five
(5) Business Days after its receipt of the Acceleration
Notice, in which event, the Closing Date shall not be accelerated
but shall occur as set forth in the preceding paragraph;
provided , however , that the Seller shall have the
right to give a Rejection Notice only if the acceleration of the
Closing Date will adversely effect the Seller’s ability to
conclude a like kind exchange pursuant to Section 12.15
, and the
3
Purchaser shall
have the right to give a Rejection Notice only if the Purchaser is
unable to satisfy the condition in Section 4.2 prior to
such accelerated Closing Date.
2.3
Purchase Price .
(a)
At Closing, the Purchaser shall pay
the Purchase Price to the Seller, subject to the following
adjustments:
(i)
There shall be added to, or deducted
from, the Purchase Price such amounts as may be required by
Article 9 .
(b)
The Purchase Price, as adjusted as
provided herein, shall be payable by wire transfer of immediately
available funds on the Closing Date to an account or accounts to be
designated by the Seller.
SECTION 3.
TITLE,
DILIGENCE MATERIALS, ETC .
3.1
Title . Prior to the execution of this Agreement,
the Seller has delivered the Existing Title Policy and the Existing
Survey to the Purchaser.
Within ten
(10) days after the execution hereof, the Purchaser shall
order an update to the Existing Title Policy (an “
Update ”) from the Title Company. The Purchaser
shall deliver to the Seller a copy of the Update promptly upon
receipt thereof. Promptly after receipt of the Update, but,
in any event, prior to the Closing Date, the Purchaser shall give
the Seller written notice of any title exceptions (other than
Permitted Exceptions) set forth on the Update as to which the
Purchaser objects. The Seller shall have the right, but not
the obligation, to attempt to remove, satisfy or otherwise cure any
exceptions to title to which the Purchaser so objects. If,
for any reason, in its sole discretion, the Seller is unable or
unwilling to take such actions as may be required to cause such
exceptions to be removed from the Update, the Seller shall give the
Purchaser notice thereof; it being understood and agreed that the
failure of the Seller to give prompt notice of objection shall be
deemed an election by the Seller not to remedy such matters.
If the Seller shall be unable or unwilling to remove any title
defects to which the Purchaser has so objected, the Purchaser may
elect (i) to terminate this Agreement or (ii) to
consummate the transactions contemplated hereby, notwithstanding
such title defect, without any abatement or reduction in the
Purchase Price on account thereof (whereupon such objected to
exceptions or matters shall be deemed to be
4
Permitted
Exceptions). The Purchaser shall make any such election by
written notice to the Seller given on or prior to the fifth
(5 th ) Business Day after the Seller’s notice of
its unwillingness or inability to cure (or deemed election not to
cure) such defect and time shall be of the essence with respect to
the giving of such notice. Failure of the Purchaser to give
such notice shall be deemed an election by the Purchaser to proceed
in accordance with clause (ii) above.
3.2
No
Other Diligence. The P urchaser acknowledges that, except as provided in
Section 3.1 , (i) the Purchaser has had the
opportunity to fully investigate and inspect the physical and
environmental condition of the Property, and to review and analyze
all title examinations, surveys, environmental assessment reports,
building evaluations, financial data and other investigations and
materials pertaining to the Property which the Purchaser deems
necessary to determine the feasibility of the Property and its
decision to acquire the Property, (ii) the Purchaser shall not
be conducting any further title examinations, surveys,
environmental assessments, building evaluations, financial analyses
or other investigations with respect to the Property, and
(iii) the Purchaser shall not have any right to terminate this
Agreement as a result of any title examinations, surveys,
environmental assessments, building valuations, financial analyses
or other investigations with respect to the Property.
SECTION 4.
CONDITIONS TO THE PURCHASER’S OBLIGATION
TO CLOSE.
The obligation of
the Purchaser to acquire the Property shall be subject to the
satisfaction of the following conditions precedent on and as of the
Closing Date:
4.1
Closing Documents . The Seller shall have delivered, or cause
to have been delivered, to the Purchaser the following:
(a)
A good and sufficient deed in the form
attached as Schedule C hereto, with respect to the Property,
in proper statutory form for recording, duly executed and
acknowledged by the Seller, conveying title to the Property, free
from all liens and encumbrances other than the Permitted
Exceptions;
(b)
An assignment by the Seller and an
assumption by the Purchaser, in form and substance reasonably
satisfactory to the Seller and the Purchaser, duly executed and
acknowledged by the Seller and the Purchaser, of all of the
Seller’s right, title and interest in, to and under the
Leases and all of the Seller’s
5
right, title
and interest, if any, in, to and under all transferable licenses,
contracts, permits and agreements affecting the
Property;
(c)
A bill of sale by the Seller, without
warranty of any kind, in form and substance reasonably satisfactory
to the Seller and the Purchaser, with respect to any personal
property owned by the Seller, situated at the Property and used
exclusively by the Seller in connection with the Property (it being
understood and agreed that no portion of the Purchase Price is
allocated to personal property);
(d)
To the extent the same are in the
Seller’s possession, original, fully executed copies of all
material documents and agreements, plans and specifications and
contracts, licenses and permits pertaining to the
Property;
(e)
To the extent the same are in the
Seller’s possession, duly executed original copies of the
Leases;
(f)
A closing statement showing the
Purchase Price, apportionments and fees, and costs and expenses
paid in connection with the Closing; and
(g)
Such other conveyance documents,
certificates, deeds and other instruments as the Purchaser, the
Seller or the Title Company may reasonably require and as are
customary in like transactions in sales of property in similar
transactions.
4.2
Financing .
The Purchaser shall have, in addition
to funds available to the Purchaser on date of this Agreement,
secured sufficient additional funds, whether by means of capital
market transactions, bank financings or otherwise, to consummate
the transactions contemplated hereby.
4.3
Title
Policy . The Title Company shall be prepared to issue,
upon payment of the title premium at its regular rates, a title
policy in the amount of the Purchase Price, insuring title to the
Property is vested in the Purchaser or its designee or assignee,
subject only to the Permitted Exceptions, with such endorsements as
shall be reasonably required by the Purchaser.
4.4
Environmental Reliance Letters.
The Purchaser shall have received a
reliance letter, authorizing the Purchaser
and its designees and assignees to rely on the most recent
environmental assessment report prepared for the Property, in form
and substance reasonably acceptable to t he Purchaser.
6
4.5
Condition of Property.
The Property shall be in substantially the same
physical condition as on the date of this Agreement, ordinary wear
and tear and, subject to Section 10.1 , casualty
excepted.
4.6
Other
Conditions . All
representations and warranties of the Seller herein shall be true,
correct and complete in all material respects on and as of the
Closing Date and the Seller shall have performed in all material
respects all covenants and obligations required to be performed by
the Seller on or before the Closing Date.
SECTION 5.
CONDITIONS TO SELLER’S OBLIGATION TO
CLOSE .
The obligation of
the Seller to convey the Property to the Purchaser is subject to
the satisfaction of the following conditions precedent on and as of
the Closing Date:
5.1
Purchase Price .
The Purchaser shall deliver to
the Seller the Purchase Price payable hereunder, subject to the
adjustments set forth in Section 2.3 , together with
any closing costs to be paid by the Purchaser under
Section 9.2 .
5.2
Closing Documents . The Purchaser shall have delivered to the
Seller duly executed and acknowledged counterparts of the documents
described in Section 4.1 , where
applicable.
5.3
Other
Conditions . All representations and warranties of the
Purchaser herein shall be true, correct and complete in all
material respects on and as of the Closing Date and the Purchaser
shall have performed in all material respects all covenants and
obligations required to be performed by the Purchaser on or before
the Closing Date.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF
SELLER .
To induce the
Purchaser to enter into this Agreement, the Seller represents and
warrants to the Purchaser as follows:
6.1
Status
and Authority of the Seller, Etc. The Seller is duly organized, validly
existing and in good standing under the laws of its state of
organization or formation, and has all requisite power and
authority under its charter documents to enter into and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
6.2
Action
of the Seller, Etc. The Seller has taken all necessary action
to authorize the execution, delivery and
7
performance of this Agreement, and upon the
execution and delivery of any document to be delivered by the
Seller on or prior to the Closing Date, this Agreement and such
document shall constitute the valid and binding obligation and
agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws of general application affecting the rights and remedies of
creditors.
6.3
No
Violations of Agreements . Neither the execution, delivery or
performance of this Agreement by the Seller, nor compliance with
the terms and provisions hereof, will result in any breach of the
terms, conditions or provisions of, or conflict with or constitute
a default under, or result in the creation of any lien, charge or
encumbrance upon the Property pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness
or any other agreement or instrument by which the Seller is
bound.
6.4
Litigation . To the Seller’s actual knowledge,
it has not received written notice that any investigation, action
or proceeding is pending or threatened, which (i) questions
the validity of this Agreement or any action taken or to be taken
pursuant hereto, or (ii) involves condemnation or eminent
domain proceedings against the Property or any portion
thereof.
6.5
Existing Leases, Etc.
Subject to Section 8.1 , other than
the Leases listed in the Rent Roll, the Seller has not entered into
a contract or agreement with respect to the occupancy of the
Property that will be binding on the Purchaser after the
Closing. To the Seller’s actual knowledge: (a) the
copies of the Leases heretofore delivered by the Seller to the
Purchaser are true, correct and complete copies thereof; and
(b) such Leases have not been amended except as evidenced by
amendments similarly delivered and constitute the entire agreement
between the Seller and the tenants thereunder. Except as
otherwise set forth in the Rent Roll or the Leases: (i) to the
Seller’ actual knowledge, each of its Leases is in full force
and effect on the terms set forth therein; (ii) to the
Seller’s actual knowledge, there are no uncured defaults or
circumstances which with the giving of notice, the passage of time
or both would constitute a default thereunder which would have a
material adverse effect on the business or operations of the
Property; (iii) to the Seller’s actual knowledge, each
of its tenants is legally required to pay all sums and perform all
material obligations set forth therein without any ongoing
concessions, abatements, offsets, defenses or other basis
for
8
relief or adjustment; (iv) to the
Seller’s actual knowledge, none of its tenants has asserted
in writing or has any defense to, offsets or claims against, rent
payable by it or the performance of its other obligations under its
Lease which would have a material adverse effect on the on-going
business or operations of the Property; (v) the Seller has no
outstanding obligation to provide any of its tenants with an
allowance to perform, or to perform at its own expense, any tenant
improvements; (vi) none of its tenants has prepaid any rent or
other charges relating to the post-Closing period; (vii) to
the Seller’s actual knowledge, none of its tenants has filed
a petition in bankruptcy or for the approval of a plan of
reorganization or management under the Federal Bankruptcy Code or
under any other similar state law, or made an admission in writing
as to the relief therein provided, or otherwise become the subject
of any proceeding under any federal or state bankruptcy or
insolvency law, or has admitted in writing its inability to pay its
debts as they become due or made an assignment for the benefit of
creditors, or has petitioned for the appointment of or has had
appointed a receiver, trustee or custodian for any of its property,
in any case that would have a material adverse effect on the
business or operations of the Property; (viii) to the
Seller’s actual knowledge, none of its tenants has requested
in writing a modification of its Lease, or a release of its
obligations under its Lease in any material respect or has given
written notice terminating its Lease, or has been released of its
obligations thereunder in any material respect prior to the normal
expiration of the term thereof, in any case that would have a
material adverse effect on the on-going business or operations of
the Property; (ix) to the Seller’s actual knowledge,
except as set forth in the Leases, no guarantor has been released
or discharged, voluntarily or involuntarily, or by operation of
law, from any obligation under or in connection with any of its
Leases or any transaction related thereto; and (x) all
brokerage commissions currently due and payable with respect to
each of its Leases have been paid. To the Seller’s
actual knowledge, the other information set forth in the Rent Roll
is true, correct and complete in all material respects.
6.6
Agreements, Etc. Other than the Leases, the Seller has not
entered into any contract or agreement with respect to the Property
which will be binding on the Purchaser after the Closing other than
contracts and agreements being assumed by the Purchaser or which
are terminable upon thirty (30) days notice without payment of
premium or penalty.
9
6.7
Not a
Foreign Person . The Seller is not a “foreign
person” within the meaning of Section 1445 of the United
States Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
The
representations and warranties made in this Agreement by the Seller
shall be continuing and shall be deemed remade by the Seller as of
the Closing Date, with the same force and effect as if made on, and
as of, such date. All representations and warranties made in
this Agreement by the Seller shall survive the Closin
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