Exhibit
10.15
1825, 1911 and 1925 N. Mills Avenue, Orlando,
FL
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
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SECTION 1.
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DEFINITIONS
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1
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1.1.
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“Agreement”
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1
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1.2.
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“Business
Day”
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1
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1.3.
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“Closing”
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1
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1.4.
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“Closing
Date”
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1
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1.5.
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“Existing
Survey”
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1
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1.6.
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“Existing Title
Policy”
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2
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1.7.
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“Improvements”
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2
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1.8.
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“Land”
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2
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1.9.
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“Leases”
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2
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1.10.
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“Other
Property”
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2
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1.11.
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“Permitted
Exceptions”
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2
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1.12.
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“Property”
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2
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1.13.
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“Purchase
Price”
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2
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1.14.
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“Purchaser”
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3
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1.15.
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“Rent
Roll”
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3
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1.16.
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“Seller”
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3
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1.17.
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“Title
Company”
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3
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1.18.
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“Update”
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3
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SECTION 2.
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PURCHASE AND SALE;
CLOSING.
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3
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2.1.
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Purchase and
Sale.
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3
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2.2.
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Closing.
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3
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2.3.
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Purchase
Price.
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4
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SECTION 3.
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TITLE, DILIGENCE
MATERIALS, ETC.
|
4
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3.1.
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Title.
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4
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3.2.
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No Other
Diligence.
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5
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SECTION 4.
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CONDITIONS TO THE
PURCHASER’S OBLIGATION TO CLOSE.
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5
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4.1.
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Closing
Documents.
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5
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4.2.
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Financing.
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6
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4.3.
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Title
Policy.
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6
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4.4.
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Environmental Reliance
Letters.
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6
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4.5.
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Condition of
Property.
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7
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4.6.
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Other
Conditions.
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7
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SECTION 5.
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CONDITIONS TO
SELLER’S OBLIGATION TO CLOSE.
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7
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5.1.
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Purchase
Price.
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7
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5.2.
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Closing
Documents.
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7
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5.3.
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Other
Conditions.
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7
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SECTION 6.
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REPRESENTATIONS AND
WARRANTIES OF SELLER.
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7
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6.1.
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Status and Authority of
the Seller, Etc.
|
7
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6.2.
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Action of the Seller,
Etc.
|
8
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6.3.
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No Violations of
Agreements.
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8
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6.4.
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Litigation.
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8
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6.5.
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Existing Leases,
Etc.
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8
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6.6.
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Agreements,
Etc.
|
9
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6.7.
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Not a Foreign
Person.
|
10
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i
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SECTION 7.
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REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
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11
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7.1.
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Status and Authority of
the Purchaser.
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11
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7.2.
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Action of the
Purchaser.
|
11
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7.3.
|
No Violations of
Agreements.
|
11
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7.4.
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Litigation.
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12
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SECTION 8.
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COVENANTS OF THE
SELLER.
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12
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8.1.
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Approval of
Agreements.
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12
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8.2.
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Operation of
Property.
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12
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8.3.
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Compliance with Laws,
Etc.
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12
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8.4.
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Compliance with
Agreements.
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12
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8.5.
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Notice of Material
Changes or Untrue Representations.
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12
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8.6.
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Insurance.
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13
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8.7.
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Approval of 2009
Capital Expenditure Budget.
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13
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SECTION 9.
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APPORTIONMENTS.
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13
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9.1.
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Real Property
Apportionments.
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13
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9.2.
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Closing
Costs.
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16
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SECTION 10.
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DAMAGE TO OR
CONDEMNATION OF PROPERTY.
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16
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10.1.
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Casualty.
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16
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10.2.
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Condemnation.
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17
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10.3.
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Survival.
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17
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SECTION 11.
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DEFAULT.
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17
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11.1.
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Default by the
Seller.
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17
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11.2.
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Default by the
Purchaser.
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17
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SECTION 12.
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MISCELLANEOUS.
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18
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12.1.
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Allocation of
Liability.
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18
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12.2.
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Brokers.
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18
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12.3.
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Publicity.
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18
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12.4.
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Notices.
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19
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12.5.
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Waivers,
Etc.
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20
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12.6.
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Assignment; Successors
and Assigns.
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20
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12.7.
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Severability.
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21
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12.8.
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Counterparts,
Etc.
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21
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12.9.
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Performance on Business
Days.
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21
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12.10.
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Attorneys’
Fees.
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21
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12.11.
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Section and Other
Headings.
|
21
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12.12.
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Time of
Essence.
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22
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12.13.
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Governing
Law.
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22
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12.14.
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Arbitration.
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22
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12.15.
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Like Kind
Exchange.
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23
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12.16.
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Recording.
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23
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12.17.
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Non-liability of
Trustees of Seller.
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23
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12.18.
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Non-liability of
Trustees of Purchaser.
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24
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12.19.
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Waiver and Further
Assurances.
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24
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12.20.
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State Specific
Provisions.
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24
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ii
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 Twelve Million Seven Hundred Thirty-Seven
Thousand Two Hundred and Ninety-Three Dollars
($12,737,293).
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
February 9, 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
3
conclude a like
kind exchange pursuant to Section 12.15 , and the
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
4
such objected to
exceptions or matters shall be deemed to be 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 Purchaser 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
5
and interest
in, to and under the Leases and all of the Seller’s 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
6
environmental assessment
report prepared for the Property, in form and substance reasonably
acceptable to t he Purchaser.
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
7
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 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
8
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
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
9
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.
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 th
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