Exhibit 10.9
Oklahoma Clinics
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.
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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.
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7
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6.2.
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Action of the Seller, Etc.
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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.
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9
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6.7.
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Not
a Foreign Person.
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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.
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11
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7.3.
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No
Violations of Agreements.
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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.
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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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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 Twenty Eight Million Nine Hundred Ten
Thousand Nine Hundred Fifty Two Dollars ($28,910,952).
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
April 15, 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 the Closing for a period
of t
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