Exhibit
10.2


 


Lakewood
Building A

7600 Capital of Texas Highway

Austin, TX


 


PURCHASE AND SALE AGREEMENT


 


 


by and between


 


 


LAKEWOOD PROPERTY TRUST,


 


 


as Seller,


 


 


and


 


 


SENIOR HOUSING PROPERTIES TRUST,


 


 


as Purchaser


 


 






 


 


November 12, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  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

  	
  2

  
	
  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

  	
  3

  
	
  SECTION 3.

  	
  TITLE, DILIGENCE
  MATERIALS, ETC.

  	
  3

  
	
  3.1

  	
  Title

  	
  3

  
	
  3.2

  	
  No Other Diligence

  	
  4

  
	
  SECTION 4.

  	
  CONDITIONS TO THE PURCHASER’S
  OBLIGATION TO CLOSE

  	
  5

  
	
  4.1

  	
  Closing Documents

  	
  5

  
	
  4.2

  	
  Title Policy

  	
  6

  
	
  4.3

  	
  Environmental Reliance Letters

  	
  6

  
	
  4.4

  	
  Condition of Property

  	
  6

  
	
  4.5

  	
  Other Conditions

  	
  6

  
	
  SECTION 5.

  	
  CONDITIONS TO SELLER’S OBLIGATION
  TO CLOSE

  	
  6

  
	
  5.1

  	
  Purchase Price

  	
  6

  
	
  5.2

  	
  Closing Documents

  	
  6

  
	
  5.3

  	
  Other Conditions

  	
  6

  
	
  SECTION 6.

  	
  REPRESENTATIONS AND WARRANTIES OF
  SELLER

  	
  7

  
	
  6.1

  	
  Status and Authority of the Seller

  	
  7

  
	
  6.2

  	
  Action of the Seller

  	
  7

  
	
  6.3

  	
  No Violations of Agreements

  	
  7

  
	
  6.4

  	
  Litigation

  	
  7

  
	
  6.5

  	
  Existing Leases, Etc.

  	
  7

  
	
  6.6

  	
  Agreements, Etc.

  	
  9

  
	
  6.7

  	
  Not a Foreign Person

  	
  9

  
	
  SECTION 7.

  	
  REPRESENTATIONS AND WARRANTIES OF
  PURCHASER

  	
  10

  
	
  7.1

  	
  Status and Authority of the Purchaser

  	
  10

  



 

















 


	
  7.2

  	
  Action of the Purchaser

  	
  10

  
	
  7.3

  	
  No Violations of Agreements

  	
  10

  
	
  7.4

  	
  Litigation

  	
  11

  
	
  SECTION 8.

  	
  COVENANTS OF THE SELLER

  	
  11

  
	
  8.1

  	
  Approval of Agreements

  	
  11

  
	
  8.2

  	
  Operation of Property

  	
  11

  
	
  8.3

  	
  Compliance with Laws, Etc.

  	
  11

  
	
  8.4

  	
  Compliance with Agreements

  	
  11

  
	
  8.5

  	
  Notice of Material Changes or Untrue Representations

  	
  12

  
	
  8.6

  	
  Insurance

  	
  12

  
	
  8.7

  	
  Approval of 2011 Capital Expenditure Budget

  	
  12

  
	
  SECTION 9.

  	
  APPORTIONMENTS

  	
  12

  
	
  9.1

  	
  Real Property Apportionments

  	
  12

  
	
  9.2

  	
  Closing Costs

  	
  15

  
	
  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

  	
  17

  
	
  12.3

  	
  Publicity

  	
  18

  
	
  12.4

  	
  Notices

  	
  18

  
	
  12.5

  	
  Waivers, Etc.

  	
  19

  
	
  12.6

  	
  Assignment; Successors and Assigns

  	
  20

  
	
  12.7

  	
  Severability

  	
  20

  
	
  12.8

  	
  Counterparts Complete Agreement, Etc.

  	
  20

  
	
  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

  	
  21

  
	
  12.14

  	
  Arbitration

  	
  21

  
	
  12.15

  	
  Like Kind Exchange

  	
  22

  
	
  12.16

  	
  Recording

  	
  23

  
	
  12.17

  	
  Non-liability of Trustees of Seller

  	
  23

  
	
  12.18

  	
  Non-liability of Trustees of Purchaser

  	
  23

  
	
  12.19

  	
  Waiver and Further Assurances

  	
  23

  
	
  12.20

  	
  State Specific Provisions

  	
  24

  



 


- 2 -

















 


PURCHASE AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT is made as of November 12,
2010, by and between LAKEWOOD PROPERTY 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 Five Million Three Hundred Sixty Thousand Fifty Dollars ($5,360,050).


 


1.14     “Purchaser”  shall
have the meaning given such term in the preambles to this Agreement, together
with any permitted successors and assigns.


 


- 2 -

















 


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 Stewart Title Guaranty Company.


 


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 June 30, 2011, as the same may
be accelerated or extended by agreement of the parties (the “Closing Date”).


 


2.3       Purchase Price.


 


(a)      At
Closing, the Purchaser shall pay the Purchase Price to the Seller, subject to
adjustment as provided in 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 


 


- 3 -

















 


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
Permitted Exceptions).  The Purchaser
shall make any such election by written notice to the  Seller given on or prior to the fifth (5th) 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.


 


- 4 -

















 


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)      (i) 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 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 


 


- 5 -

















 


customary
in like transactions in sales of property in similar transactions.


 


4.2       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.


 


4.3       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 the Purchaser.


 


4.4       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.


 


4.5       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 have delivered 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.


 


- 6 -
















 


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.  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.  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 


 


- 7 -

















 


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 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 


 


- 8 -

















 


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.


 


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 one (1) year, and upon expiration
shall be of no further force or effect except to the extent that with respect
to any particular alleged breach, the Purchaser gives the Seller written notice
prior to the expiration of said one (1) year period of such alleged breach
with reasonable detail as to the nature of such breach.


 


Except as otherwise expressly provided in this
Agreement or in any documents to be delivered to the Purchaser at the Closing,
the Seller has not made, and the Purchaser has not relied on, any information,
promise, representation or warranty, express or implied, regarding the
Property, whether made by the Seller, on the Seller’s behalf or otherwise,
including, without limitation, the physical condition of the Property, the
financial condition of the tenants under the Leases, title to or the boundaries
of the Property, pest control matters, soil conditions, the presence, existence
or absence of hazardous wastes, toxic substances or other environmental
matters, compliance with building, health, safety, land use and zoning laws,
regulations and orders, structural and other engineering characteristics,
traffic patterns, market data, economic conditions or projections, and any
other information pertaining to the Property or the market and physical
environments in which they are located. 
The Purchaser acknowledges that (i) the Purchaser has entered into
this Agreement with the intention of relying upon its own investigation or that
of third parties with respect to the physical, environmental, economic and
legal 


 


- 9 -

















 


condition of the Property and (ii) the Purchaser is
not relying upon any statements, representations or warranties of any kind,
other than those specifically set forth in this Agreement or in any document to
be delivered to the Purchaser at the Closing, made (or purported to be made) by
the Seller or anyone acting or claiming to act on the Seller’s behalf.  The Purchaser has inspected the Property and
is fully familiar with the physical condition thereof and shall purchase the
Property in its “as is”, “where is” and “with all faults” condition on the
Closing Date.  Notwithstanding anything
to the contrary contained herein, in the event that any party hereto has actual
knowledge of the default of any other party (a “Known Default”), but
nonetheless elects to consummate the transactions contemplated hereby and
proceeds to Closing, then the rights and remedies of such non-defaulting party
shall be waived with respect to such Known Default upon the Closing and the
defaulting party shall have no liability with respect thereto.


 


SECTION 7.        REPRESENTATIONS
AND WARRANTIES OF PURCHASER.


 


To induce the Seller to enter into this Agreement,
the Purchaser represents and warrants to the Seller as follows:


 


7.1       Status and Authority of
the Purchaser.  The
Purchaser 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.


 


7.2       Action of the Purchaser.  The Purchaser 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
Purchaser on or prior to the Closing Date, this Agreement and such document
shall constitute the valid and binding obligation and agreement of the
Purchaser, enforceable against the Purchaser 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.


 


7.3       No Violations of
Agreements.  Neither the
execution, delivery or performance of this Agreement by the Purchaser, 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 any property or assets of the Purchaser pursuant to the terms of any
indenture, 


 


- 10 -

















 


mortgage, deed of trust, note, evidence
of indebtedness or any other agreement or instrument by which the Purchaser is
bound.


 


7.4       Litigation.  The Purchaser has received no written notice
that any investigation, action or proceeding is pending or threatened which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.


 


The representations and warranties made in this
Agreement by the Purchaser shall be continuing and shall be deemed remade by
the Purchaser 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 Purchaser shall
survive the Closing for a period of one (1) year, and upon expiration
shall be of no further force or effect except to the extent that with respect
to any particular alleged breach, the Seller gives the Purchaser written notice
prior to the expiration of said one (1) year period of such alleged breach
with reasonable detail as to the nature of such breach.


 


SECTION 8.        COVENANTS
OF THE SELLER.


 


The Seller hereby covenants with the Purchaser
between the date of this Agreement and the Closing Date as follows:


 


8.1       Approval of Agreements.  Not to enter into, modify, amend or terminate
any Lease or any other material agreement with respect to the Property, which
would encumber or be binding upon the Property from and after the Closing Date,
without in each instance obtaining the prior written consent of the Purchaser.


 


8.2       Operation of Property.  To continue to operate the Property consistent
with past practices.


 


8.3       Compliance with Laws, Etc.  To comply in all material respects with (i) all
laws, regulations and other requirements from time to time applicable of every
governmental body having jurisdiction of the Property, or the use or occupancy
thereof, and (ii) all material terms, covenants and conditions of all
agreements affecting the Property.


 


8.4       Compliance with Agreements.  To comply with each and every material term,
covenant and condition contained in the Leases and any other material document
or agreement affecting the Property and to monitor compliance thereunder
consistent with past practices.


 


- 11 -

















 


8.5       Notice of Material Changes
or Untrue Representations. 
Upon learning of any material change in any condition with respect to
the Property or of any event or circumstance which makes any representation or
warranty of the Seller to the Purchaser under this Agreement untrue or
misleading, promptly to notify the Purchaser thereof.


 


8.6       Insurance.  To
maintain, or cause to be maintained, all existing property insurance relating
to the Property.


 


8.7       Approval of 2011 Capital
Expenditure Budget.  The
Seller shall prepare for the Purchaser’s review and approval prior to December 31,
2010, a 2011 capital expenditure budget for the Property (the “2011 CapEx
Budget”) (including, without limitation, budgeted items for “building
improvements” and “development and redevelopment”).


 


SECTION 9.        APPORTIONMENTS.


 


9.1       Real Property
Apportionments.  (a) 
The following items shall be apportioned at the Closing as of the close of
business on the day immediately preceding the Closing Date:


 


(i)                                                    annual rents, operating
costs, taxes and other fixed charges payable under the Leases;


 


(ii)                                                percentage rents and other
unfixed charges payable under the Leases;


 


(iii)                                            fuel, electric, water and
other utility costs;


 


(iv)                                            municipal assessments and
governmental license and permit fees;


 


(v)                                                Real estate taxes and
assessments other than special assessments, based on the rates and assessed
valuation applicable in the fiscal year for which assessed;


 


(vi)                                            Water rates and charges;


 


(vii)                                        Sewer and vault taxes and
rents; and


 


(viii)                                    all other items of income
and expense normally apportioned in sales of property in similar situations in
the jurisdiction where the Property is located.


 


If any of the foregoing cannot be apportioned at the
Closing because of the unavailability of the amounts which are 


 


- 12 -

















 


to be apportioned, such items shall be apportioned on
the basis of a good faith estimate by the parties and reconciled as soon as
practicable after the Closing Date but, in any event, no later than one (1) year
after the Closing Date.


 


(b)      If there
are water, gas or electric meters located at the Property, the Seller shall
obtain readings thereof to a date not more than thirty (30) days prior to the
Closing Date and the unfixed water rates and charges, sewer taxes and rents and
gas and electricity charges, if any, based thereon for the intervening time
shall be apportioned on the basis of such last readings.  If such readings are not obtainable by the
Closing Date, then, at the Closing, any water rates and charges, sewer taxes
and rents and gas and electricity charges which are based on such readings
shall be prorated based upon the per diem charges obtained by using the most
recent period for which such readings shall then be available.  Upon the taking of subsequent actual
readings, the apportionment of such charges shall be recalculated and the
Seller or the Purchaser, as the case may be, promptly shall make a payment to
the other based upon such recalculations. 
The parties agree to make such final recalculations within sixty (60)
days after the Closing Date.


 


(c)      If any refunds
of real property taxes or assessments, water rates and charges or sewer taxes
and rents shall be made after the Closing, the same shall be held in trust by
the Seller or the Purchaser, as the case may be, and shall first be applied to
the unreimbursed costs incurred in obtaining the same, then to any required
refunds to tenants under the Leases, and the balance, if any, shall be paid to
the Seller (for the period prior to the Closing Date) and to the Purchaser (for
the period commencing with the Closing Date).


 


(d)     If, on the
Closing Date, the Property shall be or shall have been affected by any special
or general assessment or assessments or real property taxes payable in a lump
sum or which are or may become payable in installments of which the first installment
is then a charge or lien and has become payable, the Seller shall pay or cause
to be paid at the Closing the unpaid installments of such assessments due and
as of the Closing Date.


 


(e)      No
insurance policies of the Seller are to be transferred to the Purchaser, and no
apportionment of the premiums therefor shall be made.


 


- 13 -

















 


(f)      At the
Closing, the Seller shall transfer to the Purchaser the amount of all unapplied
security deposits held pursuant to the terms of the Leases.


 


(g)      Brokerage
commissions, tenant improvement expenses and other amounts payable by the
Seller as landlord under Leases entered into by the Seller after the date
hereof, or in connection with the renewal or extension of any existing Lease,
shall be allocated between the Seller and the Purchaser at Closing based upon
their respective periods of ownership (calculated on a straight-line basis over
the initial term or extension or renewal period, as applicable), and the
Purchaser shall reimburse the Seller at the Closing for all amounts so
allocated to the Purchaser and paid by the Seller prior to the Closing.  The Purchaser shall receive a credit at
Closing for all unpaid brokerage commissions, tenant improvement expenses and
other amounts payable by the Seller as landlord under any such new Lease,
renewal or extension that are allocated to the Seller in accordance with the
terms hereof.


 


(h)      Amounts
payable after the date hereof on account of capital expenditures under the 2010
capital expenditure budget previously prepared by the Seller (the “2010
CapEx Budget”) and the 2011 CapEx Budget (together with the 2010 CapEx
Budget, collectively, the “CapEx Budget”) (including, without
limitation, budgeted items for “building improvements” and “development and
redevelopment”), shall be allocated between the Seller and the Purchaser at
Closing based upon their respective periods of ownership (on a straight line
basis), and the Purchaser shall reimburse the Seller at the Closing for all amounts
so allocated to the Purchaser and paid by the Seller prior to the Closing.  The Purchaser shall receive a credit at
Closing for all unpaid amounts payable on account of capital expenditures under
the CapEx Budget allocated to the Seller in accordance with the terms hereof.


 


(i)       If a net
amount is owed by the Seller to the Purchaser pursuant to this Section 9.1,
such amount shall be credited against the Purchase Price.  If a net amount is owed by the Purchaser to
the Seller pursuant to this Section 9.1, such amount shall be added
to the Purchase Price paid to the Seller.


 


(j)       If, on
the Closing Date, there are past due rents with respect to any Lease, amounts
received by the Purchaser with respect to such Lease after the Closing Date
shall be applied, first, to rents due or to become due 


 


- 14 -

















 


during the
calendar month in which the Closing occurs, and then, to all other rents
due or past due in inverse order to the order in which they became due (i.e.,
first to arrearages most recently occurring, then to older arrearages).  Any such past due rents received by the
Purchaser, once applied in the foregoing order of priority, to the extent
applicable to the period prior to the Closing Date, shall be paid by the
Purchaser to the Seller.  In no event
shall the Seller have any right to take any action to collect any past due
rents or other amounts following the Closing; provided, however,
the Purchaser shall use commercially reasonable efforts to collect such past
due rents and other amounts, except that the Purchaser shall have no obligation
to institute any legal action or proceeding or otherwise enforce any of its
rights and remedies under any Lease in connection with such commercially
reasonable efforts.


 


The provisions of this Section 9.1 shall
survive the Closing.


 


9.2       Closing Costs.


 


(a)      The
Purchaser shall pay (i) the costs of closing and diligence in connection
with the transactions contemplated hereby (including, without limitation, all
premiums, charges and fees of the Title Company in connection with the title
examination and insurance policies to be obtained by the Purchaser, including
affirmative endorsements), (ii) fifty percent (50%) of all documentary,
stamp, sales, intangible and other transfer taxes and fees incurred in
connection with the transactions contemplated by this Agreement, and (iii) fifty
percent (50%) of all state, city, county, municipal and other governmental
recording and filing fees and charges.


 


(b)      The Seller
shall pay (i) fifty percent (50%) of all documentary, stamp, sales,
intangible and other transfer taxes and fees incurred in connection with the
transactions contemplated by this Agreement, and (ii) fifty percent (50%)
of all state, city, county, municipal and other governmental recording and
filing fees and charges


 


(c)      Except as
otherwise set forth in this Section 9.2, each party shall pay the
fees and expenses of its attorneys and other consultants.


 


- 15 -

















 


SECTION 10.      DAMAGE
TO OR CONDEMNATION OF PROPERTY.


 


10.1       Casualty.  If, prior to the Closing, the Property
is  materially destroyed or damaged by
fire or other casualty, the Seller shall promptly notify the Purchaser of such
fact.  In such event, the Purchaser shall
have the right to terminate this Agreement by giving notice to the Seller not
later than ten (10) days after the giving of the Seller’s notice (and, if
necessary, the Closing Date shall be extended until one day after the
expiration of such ten-day period).  If
the Purchaser elects to terminate this Agreement as aforesaid, this Agreement
shall terminate and be of no further force and effect and no party shall have
any liability to the other hereunder.  If
less than a material part of the Property shall be affected by fire or other
casualty or if the Purchaser shall not elect to terminate this Agreement as
aforesaid, there shall be no abatement of the Purchase Price and the Seller
shall assign to the Purchaser at the Closing the rights of the Seller to the
proceeds, if any, under the Seller’s insurance policies covering the Property
with respect to such damage or destruction and there shall be credited against
the Purchase Price the amount of any deductible, any proceeds previously
received by Seller on account thereof and any deficiency in proceeds.


 


10.2       Condemnation.  If, prior to the Closing, a material part of
the Property (including access or parking thereto), is taken by eminent domain
(or is the subject of a pending taking which has not yet been consummated), the
Seller shall notify the Purchaser of such fact promptly after obtaining
knowledge thereof and the Purchaser shall have the right to terminate this
Agreement by giving notice to the Seller not later than ten (10) days
after the giving of the Seller’s notice (and, if necessary, the Closing Date
shall be extended until one day after the expiration of such ten-day
period).  If the Purchaser elects to
terminate this Agreement as aforesaid, this Agreement shall terminate and be of
no further force and effect and no party shall have any liability to the other
hereunder.  If less than a material part
of the Property shall be affected or if the Purchaser shall not elect to
terminate this Agreement as aforesaid, the sale of the Property shall be
consummated as herein provided without any adjustment to the Purchase Price
(except to the extent of any condemnation award received by the Seller prior to
the Closing) and the Seller shall assign to the Purchaser at the Closing all of
the Seller’s right, title and interest in and to all awards, if any, for the
taking, and the Purchaser shall be entitled to receive and keep all awards for
the taking of the Property or portion thereof.


 


- 16 -
















 


10.3       Survival.  The parties’ obligations, if any, under this Section 10
shall survive the Closing.


 


SECTION 11.      DEFAULT.


 


11.1       Default
by the Seller.  If the
transaction herein contemplated fails to close as a result of the default of
the Seller hereunder, or the Seller having made any representation or warranty
herein which shall be untrue or misleading in any material respect, or the
Seller having failed to perform any of the material covenants and agreements
contained herein to be performed by the Seller, the Purchaser may, as its sole
remedy, either (x) terminate this Agreement (in which case, the Seller
shall reimburse the Purchaser for all of the fees, charges, disbursements and
expenses of the Purchaser’s attorneys), or (y) pursue a suit for specific
performance.


 


11.2       Default
by the Purchaser.  If the
transaction herein contemplated fails to close as a result of the default of
the Purchaser hereunder, or the Purchaser having made any representation or
warranty herein which shall be untrue or misleading in any material respect, or
the Purchaser having failed to perform any of the covenants and agreements
contained herein to be performed by it, the Seller may terminate this Agreement
(in which case, the Purchaser shall reimburse the Seller for all of the fees,
charges, disbursements and expenses of the Seller’s attorneys).


 


SECTION 12.      MISCELLANEOUS.


 


12.1       Allocation of Liability.  It is expressly understood and agreed that
the Seller shall be liable to third parties for any and all obligations,
claims, losses, damages, liabilities, and expenses to the extent arising out of
events, contractual obligations, acts, or omissions of the Seller that occurred
in connection with the ownership or operation of the Property during the period
in which the Seller owned the Property prior to the Closing and the Purchaser
shall be liable to third parties for any and all obligations, claims, losses,
damages, liabilities and expenses to the extent arising out of events,
contractual obligations, acts, or omissions of the Purchaser that occur in
connection with the ownership or operation of the Property during the period in
which the Purchaser owns the Property after the Closing.  The provisions of this Section 12.1
shall survive the Closing.


 


12.2         Brokers.  Each of the parties hereto represents to the
other parties that it dealt with no broker, finder or like agent in connection
with this Agreement or the transactions 


 


- 17 -

















 


contemplated hereby.  Each party shall indemnify and hold harmless
the other party and its respective legal representatives, heirs, successors and
assigns from and against any loss, liability or expense, including reasonable
attorneys’ fees, charges and disbursements arising out of any claim or claims for
commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any other broker, finder or like
agent, if such claim or claims are based in whole or in part on dealings with
the indemnifying party.  The provisions
of this Section 12.2 shall survive the Closing.


 


12.3       Publicity.  The parties agree that, except as otherwise
required by law or the rules of the national securities exchange upon
which the applicable party’s shares are listed for trading, and except for the
exercise of any remedy hereunder, no party shall, with respect to this
Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
party, which consent shall not be unreasonably withheld, conditioned or
delayed.


 


12.4       Notices.  (a)  Any and all notices, demands,
consents, approvals, offers, elections and other communications required or
permitted under this Agreement shall be deemed adequately given if in writing
and the same shall be delivered either in hand, by telecopier with confirmed
receipt, or by mail or Federal Express or similar expedited commercial carrier,
addressed to the recipient of the notice, postpaid and registered or certified
with return receipt requested (if by mail), or with all freight charges prepaid
(if by Federal Express or similar carrier).


 


(b)      All notices required or permitted to be
sent hereunder shall be deemed to have been given for all purposes of this
Agreement upon the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or refusal,
except that whenever under this Agreement a notice is either received on a day
which is not a Business Day or is required to be delivered on or before a
specific day which is not a Business Day, the day of receipt or required delivery
shall automatically be extended to the next Business Day.


 


(c)      All such
notices shall be addressed,


 


- 18 -

















 


if to the Seller, to:


 


c/o CommonWealth REIT

400 Centre Street

Newton, Massachusetts  02458

Attn:  Mr. John C. Popeo

Telecopier No. (617) 928-1305


 


with a copy to:


 


Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, 34th Floor

Los Angeles, California 90071

Attn:  Meryl K. Chae, Esq.

Telecopier No. (213) 621-5035


 


if to the Purchaser, to:


 


Senior Housing Properties Trust

400 Centre Street

Newton, Massachusetts 02458

Attn:  Mr. David J. Hegarty

Telecopier No. (617) 796-8349


 


with a copy to:


 


Sullivan & Worcester LLP

One Post Office Square

Boston, Massachusetts  02109

Attn:  Nancy S. Grodberg, Esq.

Telecopier No. (617) 338-2880


 


(d)     By notice
given as herein provided, the parties hereto and their respective successor and
assigns shall have the right from time to time and at any time during the term
of this Agreement to change their respective addresses effective upon receipt
by the other parties of such notice and each shall have the right to specify as
its address any other address within the United States of America.


 


12.5       Waivers, Etc.  Subject to the terms of the last paragraph of
Section 6, any waiver of any term or condition of this Agreement,
or of the breach of any covenant, representation or warranty contained herein,
in any one instance, shall not operate as or be deemed to be or construed as a
further or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term, condition, covenant,
representation or warranty, nor shall any failure at any time or times to
enforce or require performance 


 


- 19 -

















 


of any
provision hereof operate as a waiver of or affect in any manner such party’s
right at a later time to enforce or require performance of such provision or
any other provision hereof.  This
Agreement may not be amended, nor shall any waiver, change, modification,
consent or discharge be effected, except by an instrument in writing executed
by or on behalf of the party against whom enforcement of any amendment, waiver,
change, modification, consent or discharge is sought.


 


12.6       Assignment;
Successors and Assigns. 
Subject to Section 12.15, this Agreement and all rights and
obligations hereunder shall not be assignable, directly or indirectly, by any
party without the written consent of the other, except that the Purchaser may
assign this Agreement to any entity wholly owned, directly or indirectly, by
the Purchaser; provided, however, that, in the event this
Agreement shall be assigned to any one or more entities wholly owned, directly
or indirectly, by the Purchaser, the Purchaser named herein shall remain liable
for the obligations of the “Purchaser” hereunder.  This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns.  This Agreement is not intended and shall not
be construed to create any rights in or to be enforceable in any part by any
other persons.


 


12.7       Severability.  If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the conflict
of any provision with any constitution or statute or rule of public policy
or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative or
unenforceable in any other jurisdiction or in any other case or circumstance or
of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute or rule of
public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable provision
had never been contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted in such
jurisdiction or in such case.


 


12.8       Counterparts
Complete Agreement, Etc.  This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall 


 


- 20 -

















 


constitute
one and the same instrument.  This
Agreement constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof and shall supersede and take the place of any
other instruments purporting to be an agreement of the parties hereto relating
to the subject matter hereof.


 


12.9       Performance
on Business Days.  In the
event the date on which performance or payment of any obligation of a party
required hereunder is other than a Business Day, the time for payment or
performance shall automatically be extended to the first Business Day following
such date.


 


12.10     Attorneys’
Fees.  If any lawsuit or
arbitration or other legal proceeding arises in connection with the
interpretation or enforcement of this Agreement, the prevailing party therein shall
be entitled to receive from the other party the prevailing party’s costs and
expenses, including reasonable attorneys’ fees incurred in connection
therewith, in preparation therefor and on appeal therefrom, which amounts shall
be included in any judgment therein.


 


12.11     Section and Other Headings.  The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.


 


12.12     Time of Essence.  Time shall be of the essence with respect to
the performance of each and every covenant and obligation, and the giving of
all notices, under this Agreement.


 


12.13     Governing Law.  This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of The Commonwealth
of Massachusetts.


 


12.14     Arbitration.  Any party hereto may elect to submit any
dispute hereunder that has an amount in controversy in excess of $250,000 to
arbitration hereunder.  Any such
arbitration shall be conducted in Boston, Massachusetts in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then
pertaining and the decision of the arbitrators with respect to such dispute
shall be binding, final and conclusive on the parties.


 


In the event any party hereto shall elect to submit
any such dispute to arbitration hereunder, the Seller and the Purchaser shall
each appoint and pay all fees of a fit and impartial person as arbitrator with
at least ten (10) years’ recent professional experience in the general
subject matter of the dispute.  Notice of
such appointment shall be sent in 


 


- 21 -

















 


writing by each party to the other, and the arbitrators
so appointed, in the event of their failure to agree within thirty (30) days
after the appointment of the second arbitrator upon the matter so submitted,
shall appoint a third arbitrator.  If
either the Seller or the Purchaser shall fail to appoint an arbitrator, as
aforesaid, for a period of ten (10) days after written notice from the
other party to make such appointment, then the arbitrator appointed by the
party having made such appointment shall appoint a second arbitrator and the
two (2) so appointed shall, in the event of their failure to agree upon
any decision within thirty (30) days thereafter, appoint a third
arbitrator.  If such arbitrators fail to
agree upon a third arbitrator within forty five (45) days after the appointment
of the second arbitrator, then such third arbitrator shall be appointed by the
American Arbitration Association from its qualified panel of arbitrators, and
shall be a person having at least ten (10) years’ recent professional
experience as to the subject matter in question.  The fees of the third arbitrator and the
expenses incident to the proceedings shall be borne equally between the Seller
and the Purchaser, unless the arbitrators decide otherwise.  The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for by the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.


 


The decision of the arbitrators shall be rendered
within thirty (30) days after appointment of the third arbitrator.  Such decision shall be in writing and in duplicate,
one counterpart thereof to be delivered to the Seller and one to the
Purchaser.  A judgment of a court of
competent jurisdiction may be entered upon the award of the arbitrators in
accordance with the rules and statutes applicable thereto then obtaining.


 


12.15     Like Kind Exchange.  At either party’s request, the non-requesting
party will take all actions reasonably requested by the requesting party in
order to effectuate all or any part of the transactions contemplated by this
Agreement as a forward or reverse like-kind exchange for the benefit of the
requesting party in accordance with Section 1031 of the Internal Revenue
Code and, in the case of a reverse exchange, Rev. Proc. 2000-37, including
executing an instrument acknowledging and consenting to any assignment by the
requesting party of its rights hereunder to a qualified intermediary or an
exchange accommodation titleholder.  In
furtherance of the foregoing and notwithstanding anything contained in this
Agreement to the contrary, the requesting party may assign its rights under
this Agreement to a “qualified intermediary” or an “exchange 


 


- 22 -

















 


accommodation titleholder” in order to facilitate, at no
cost or expense to the other, a forward or reverse like-kind exchange under Section 1031
of the Internal Revenue Code; provided, however, that such
assignment will not relieve the requesting party of any of its obligations
hereunder.  The non-requesting party will
also agree to issue all closing documents, including the deed or other
operative conveyance instrument, to the applicable qualified intermediary or
exchange accommodation titleholder if so directed by the requesting party prior
to Closing.  Notwithstanding the
foregoing, in no event shall the non-requesting party incur or be subject to
any liability that is not otherwise provided for in this Agreement.


 


12.16     Recording.  This Agreement may not be recorded without
the prior written consent of both parties.


 


12.17     Non-liability
of Trustees of Seller.  The Declaration of Trust establishing the Seller, dated December 14,
2000, as amended and supplemented, as filed with the State Department of
Assessments and Taxation of Maryland, provides that no trustee, officer,
shareholder, employee or agent of the Seller shall be held to any personal
liability, jointly or severally, for any obligation of, or claim against, the
Seller.  All persons dealing with the
Seller in any way shall look only to the assets of the Seller for the payment
of any sum or the performance of any obligation.]


 


12.18     Non-liability
of Trustees of Purchaser.  The Amended and Restated Declaration of Trust
establishing Senior Housing Properties Trust, dated September 20, 1999, as
amended and supplemented, as filed with the State Department Of Assessments and
Taxation of Maryland, provides that no trustee, officer, shareholder, employee
or agent of Senior Housing Properties Trust shall be held to any personal
liability, jointly or severally, for any obligation of, or claim against, Senior
Housing Properties Trust.  All persons
dealing with Senior Housing Properties Trust in any way shall look only to the
assets of Senior Housing Properties Trust for the payment of any sum or the
performance of any obligation.


 


12.19     Waiver and Further Assurances.  The Purchaser hereby acknowledges that it is
a sophisticated purchaser of real properties and that it is aware of all
disclosures the Seller is or may be required to provide to the Purchaser in
connection with the transactions contemplated hereby pursuant to any law, rule or
regulation (including those of Massachusetts and those of the state in which
the Property is located).   The Purchaser
hereby acknowledges that, prior to the execution of this Agreement, the
Purchaser has had access to all information 


 


- 23 -

















 


necessary
to acquire the Property and the Purchaser acknowledges that the Seller has
fully and completely fulfilled any and all disclosure obligations with respect
thereto.  The Purchaser hereby fully and
completely discharges the Seller from any further disclosure obligations
whatsoever relating to the Property.  In
addition to the actions recited herein and contemplated to be performed,
executed, and/or delivered by the Seller and the Purchaser, the Seller and the
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered at the Closing or after the Closing any and all such
further acts, instruments, deeds and assurances as may be reasonably required
to establish, confirm or otherwise evidence the Seller’s satisfaction of any
disclosure obligations or to otherwise consummate the transactions contemplated
hereby.


 


12.20     State Specific Provisions.  The provisions set forth in Schedule D
hereto are hereby incorporated herein by reference as if fully set forth
herein.


 


[Signature page follows.]


 


- 24 -
















 


IN WITNESS WHEREOF, the parties have caused
this Agreement to be executed as a sealed instrument as of the date first above
written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  LAKEWOOD PROPERTY TRUST,  a Maryland real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  C. Popeo

  
	
   

  	
   

  	
  John C. Popeo, Treasurer and
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  SENIOR HOUSING PROPERTIES TRUST,
  a Maryland real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David
  J. Hegarty

  
	
   

  	
   

  	
  David J. Hegarty, President

  



 


- 25 -

















 


SCHEDULE A


 


Land


 


[See attached legal description.]


 

















 


Lakewood Building A

7600 Capital of Texas Highway North

Austin, TX


 


The building known as Lakewood Building A, 7600 Capital
of Texas Highway North, Austin, Texas located on a portion of the parcel of
land described below:


 


TRACT 1: Being all of that certain tract or parcel of
land containing 11.548 acres, more or less, out of Lot 2, PIONEER VALLEY, a
subdivision in Travis County, Texas, according to the map or plat thereof,
recorded in Volume 77, Page(s) 114 of the Plat Records of Travis County,
Texas, said tract being more particularly described by metes and bounds on Exhibit “A”
attached hereto.


 


TRACT 2: A 30 foot access easement over a portion of
Lot-1, Pioneer Valley, a subdivision in Travis County, Texas, according to the
map or plat thereof, recorded in Volume 77, Page(s) 114 of the Plat
Records of Travis County, Texas and being more particularly described by metes
and bounds shown on Exhibit “B” attached hereto.


 

















 


Exhibit A


 


AN 11.548 ACRE TRACT OR PARCEL OF LAND OUT OF THE ROBERT
FOSTER SURVEY NO. 43 AND WILLIAM BELL SURVEY NO. 44, SITUATED IN THE CITY OF
AUSTIN, TRAVIS COUNTY, TEXAS, BEING A PORTION OF LOT 2 PIONEER VALLEY,
SUBDIVISION OF RECORD IN BOOK 77, PAGE 114 OF THE PLAT RECORDS OF TRAVIS
COUNTY, TEXAS; SAID 11.548 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:


 


BEGINNING at a point in the northerly line of North
capital of Texas Highway (State Loop 360, R.O.W. varies), same being the
southerly line of said Pioneer Valley, for the common southerly corner of Lot 1
of said Pioneer Valley and said Lot 2, and from which a 1/2 inch iron rod bears
S48°43’23”E, a distance of 0.21 feet and also from which a concrete monument
found in the northerly line of North Capital of Texas Highway, same being the
southerly line of said Lot 1 bears N46°34’07”E, a distance of 83.94 feet;


 


THENCE, along the common line of said Lot 2 and North
Capital of Texas Highway, the following two (2) courses and distances:


 


1)                                   S46°34’07”W, a distance of
907.29 feet to a 1/2 inch iron rod found for an angle point;


 


2)                                   556°35’00”W, a distance of
115.95 feet to a cotton spindle found for the southwesterly corner hereof, from
which a 1/2 inch iron rod found in the northerly line of North Capital of Texas
Highway, being the southeasterly corner of Lot 1 Creekbluff, a subdivision of
record in Book 85, Page 138C of said plat records bears S56°35’00”W, a
distance of 289.82 feet and S46°33’31”W, a distance of 52.22 feet;


 


THENCE, leaving the northerly line of North Capital of
Texas Highway, over and across said Lot 2, along the westerly line hereof the
following eight (8) courses and distances:


 


1)         N18°18’10W,
a distance of 202.23 feet to a 1⁄2 inch iron rod for an angle point;


 


2)         N01’15’34”W,
a distance of 125.31 feet to a 1⁄2 inch iron rod for an angle point;


 


3)         N15°18’59”E,
a distance of 152.93 feet to a 1⁄2 inch iron rod for an angle point;


 


4)         N19°53’44”E,
a distance of 125.58 feet to a 1⁄2 inch iron rod 


 

















 


for an angle point;


 


5)         N08°29’34”E,
a distance of 301.34 feet to a 1⁄2 inch iron rod for an angle point;


 


6)         N18°36’27”E,
a distance of 120.75 feet to a 1/2 inch iron rod set for an angle point;


 


7)         N28°05’36”E,
a distance of 153.20 feet to a 1/2 inch iron rod set for an angle point;


 


8)                                   N21°06’40”E, a distance of
131.73 feet to a 1/2 inch iron rod found in the northerly line of said Lot 2,
being the southerly line of said Lot 1 of Pioneer Valley, from which a 1/2 inch
iron rod found being the common northerly corner of said Lot 1 and said Lot 2 bears
N43°27’37”W, a distance of 210.42 feet;


 


THENCE, S43°27’37”E, along the northeasterly line of
said Lot 2, being the southerly line of said Lot 1, a distance of 779.46 feet
to the POINT OF BEGINNING, containing an area of 11.548 acres (503,026 square feet)
of land, more or less, within these metes and bounds.


 

















 


Exhibit B


 


DESCRIPTION OF A THIRTY (30) FOOT WIDE STRIP OF LAND
CONTAINING 0.306 ACRES OF LAND TO BE USED AS AN INGRESS AND EGRESS EASEMENT,
OUT OF LOT 1, PIONEER VALLEY, A SUBDIVISION OF RECORD IN BOOK 77, PAGE 114 OF
THE TRAVIS COUNTY PROPERTY RECORDS.  SAID
STRIP, AS SHOWN ON THE ACCOMPANYING SKETCH, BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:


 


BEGINNING at a point for most southerly corner of said
Lot 1, same being the most easterly corner of Lot 2 of said Pioneer Valley,
being in the west line of State Highway Loop 360 (variable width right of way),
from which a concrete monument found in west right of way line of said loop
360, bears S 46° 35’ 00” W, a distance of 907.25 feet.


 


THENCE leaving said west right of way, with the
southwest line of said Lot 1, being the northeast line of said Lot 2, N 43° 25’
37” W, a distance of 30.00 feet to a point.


 


THENCE leaving said line, crossing said Lot 1, the
following three (3) courses and distances:


 


1.                                    N 46° 35’ 00” E a distance
of 80.62 feet to a point.


 


2.                                    N 33° 56’ 09” E, a distance
of 360.68 feet to a point.


 


3.                                    S 56° 03’ 51” E, a distance
of 30.00 feet to a point in the said west line of loop 360, being the southeast
line of said Lot 1.


 


THENCE, with said west line of loop 360, being the
southeast line of said Lot 1, the following two (2) courses and distances:


 


1.                                    S 33° 56’ 09” W, a distance
of 364.00 feet to a concrete monument found, and


 


2.                                    S 46° 35’ 00” W, a distance
of 83.94 feet to the POINT OF BEGINNING and containing 0.306 acres of land.


 

















 


SCHEDULE B


 


Rent Roll


 


[See attached copy.]


 

















 


INDEX


Lease


 


Lakewood A


Austin Diagnostic Clinic


 


1.                                    Lease
Agreement, dated July 1, 2004, by and between Lakewood Property Trust (“Landlord”)
and The Austin Diagnostic Clinic, P.A. (“Tenant”).


 


2.                                    Texas State
Board of Pharmacy - Notarized Statement of Lease Agreement, dated November 16,
2004, by and between Lakewood Property Trust (“Landlord”) and Austin Diagnostic
Clinic, P.A. (“Tenant”).


 


3.                                    Declaration
by Landlord and Tenant as to Date of Delivery and Acceptance of Possession
Premises, executed April 26, 2005 by Hub Properties Trust (“Landlord”) and
The Austin Diagnostic Clinic, P.A. (“Tenant”). Re: Commencement Date occurred
on February 7, 2005 and the Original Term will expire on February 6,
2015.


 


4.                                    Consent to
Occupancy, dated November 8, 2005, by and among Lakewood Property Trust (“Landlord”),
The Austin Diagnostic Clinic, P.A. (“Tenant”) and Clinic Pathology Laboratories
(“Occupant”).


 

















 


INDEX

Lease


 


Lakewood A

Grande Communications


 


1.   Telecommunications
License Agreement, dated July 20, 2006, by and between Grande
Communications Networks, Inc. (“Licensee”) and Lakewood Property Trust (“Owner”).


 

















 


INDEX


Lease


 


Lakewood A


New Cingular dba AT&T Mobility


 


1.                                    Lease
Agreement, dated August 8, 2001 by and between Lakewood Property Trust (“Landlord”)
and Texas Cellular Telephone Company, L.P. d/b/a AT&T Wireless (“Tenant”).


 


2.                                    First
Amendment to Lease, dated January 8, 2007, by and between Lakewood Property Trust (“Landlord”)
and Houston Cellular Telephone Company, L.P., successor in interest to Texas
Cellular Telephone Company, L.P. d/b/a AT&T Wireless  (“Tenant”).


 


3.                                    Extension
Letter,
dated May 28, 2010, from William Armstrong, Real Estate Specialist,
AT&T Mobility (“Tenant”) to Kathy Mcduffie, Lakewood Property Trust.   Re: 
Notice of Intent to Extend Lease Term and name change to New Cingular
Wireless PCS, LLC dba AT & T Mobility.


 
















 


INDEX


Lease


 


Lakewood A


Time Warner Entertainment


 


1.                                    Cable
License Agreement, dated August 15, 2004, by and between Time Warner Entertainment —
Advance/New House Partnership, Austin Division d/b/a Time Warner Cable (“Licensee”)
and Lakewood Property Trust (“Licensor”).


 


2.                                    First
Amendment to Cable License Agreement, dated October 4, 2010, Lakewood Property Trust
(“Licensor”) and Time Warner Entertainment — Advance/New House Partnership,
Austin Division d/b/a Time Warner Cable (“Licensee”).


 


Note:  License Agreement with
amendments covers three different properties


 


·                Lakewood Building A *


·                Lakewood Building B


·                Lakewood Building C


 


*SNH potential transfer property only


 

















 


INDEX


Lease


 


Lakewood A


Time Warner Telecom of Texas


 


3.                                    Telecommunications
License Agreement, dated August 1, 2005, by and between Time Warner Telecom of Texas,
L.P. (“Licensee”) and Lakewood Property Trust (“Owner”).


 

















 


SCHEDULE C


 


Form of Deed


 

















 


DEED

(Without Warranty)


 


	
  THE STATE OF ______

  	
  } {

  	
   

  
	
   

  	
  } {

  	
   

  
	
  COUNTY OF

  	
  } {

  	
   

  



 


THAT, HUB Properties Trust,
a Maryland real estate investment trust (hereinafter referred to as “Grantor”),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and
other good and valuable consideration to it in hand paid by Grantee, as
hereinafter named, the receipt and sufficiency of which are hereby acknowledged
and confessed


 


HAS GRANTED, SOLD, AND CONVEYED and by these presents
does GRANT, SELL AND CONVEY unto Lakewood Property Trust, a Maryland real
estate investment trust, whose mailing address is do HRPT Properties Trust, 400
Centre Street, Newton, MA 02458, (herein called “Grantee”, whether one or
more), the following described property, to-wit:


 


TO HAVE AND TO HOLD the above described premises
together with all and singular the rights and appurtenances thereto in anywise
belonging unto said Grantee.  THIS
CONVEYANCE IS MADE WITHOUT WARRANTY, AND IS GIVEN AND ACCEPTED WITHOUT WARRANTY
EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES THAT MIGHT ARISE BY COMMON LAW
AND THE WARRANTIES IN ‘5.023 OF THE TEXAS PROPERTY CODE (OR ITS SUCCESSOR) ARE
EXCLUDED.


 


Taxes for the current year have been prorated to the
date hereof and are assumed by the Grantee.


 


This conveyance is made subject to any and all valid
conditions, restrictions, mineral interests, covenants and easements, if any,
affecting the property conveyed hereby, now of record in the County Clerk’s
Office of Travis County, Texas, the lien for current taxes and assessments not
in default, any discrepancies, conflicts, or shortages in area or boundary
lines or any encroachments or any overlapping of improvements and any existing
building and zoning ordinances.


 


When this deed is executed by more than one person, or
Grantee is more than one person, the pertinent verbs, nouns and pronouns were
changed correspondingly, and when executed by a corporation, the words “heirs,
executors and administrator” and “heirs and assigns”


 

















 


	
  THE STATE OF ______

  	
  } {

  	
   

  
	
   

  	
  } {

  	
   

  
	
  COUNTY OF

  	
  } {

  	
   

  



 


Before me, the undersigned authority, on this day
personally appeared                               ,
known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same for the purpose and
consideration expressed therein.


 


GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS         
DAY OF               ,
2000.


 


 


	
   

  	
                                             

  
	
   

  	
  Notary Public, State of                        

  
	
   

  	
  Notary’s Printed Name:                        

  
	
   

  	
   

  
	
  My Commission Expires:

  	
   

  
	
                                       

  	
   

  



 

















 


EXHIBIT A


 


(See attached document)


 

















 


SCHEDULE D


 


State Specific Provisions


 


1.           DPTA Waiver.  IT IS THE INTENT OF THE SELLER AND THE
PURCHASER THAT THE RIGHTS AND REMEDIES WITH RESPECT TO THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT SHALL BE GOVERNED BY LEGAL PRINCIPLES OTHER THAN
THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT.  ACCORDINGLY, TO THE MAXIMUM EXTENT APPLICABLE
AND PERMITTED BY LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), THE PUCHASER
HEREBY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT, CHAPTER 17, SUBCHAPTER 3 (OTHER THAN SECTION 17.555, WHICH
IS NOT WAIVED), TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS.  FOR
PURPOSES OF THE WAIVERS SET FORTH IN THIS AGREEMENT, THE PURCHASER HEREBY
WARRANTS AND REPRESENTS UNTO THE SELLER THAT (A) THE PURCHASER HAS
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO
EVALUATE THE MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED UNDER THIS
AGREEMENT, (B) THE PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION WITH THE SELLER REGARDING THE TRANSACTIONS CONTEMPLATED
UNDER THIS AGREEMENT, (C) THE PURCHASER IS REPRESENTED BY LEGAL COUNSEL
THAT IS SEPARATE AND INDEPENDENT OF THE SELLER AND THE SELLER’S LEGAL COUNSEL
AND (D) THE PURCHASER HAS CONSULTED WITH THE PURCHASER’S LEGAL COUNSEL
REGARDING THIS AGREEMENT PRIOR TO THE PURCHASER’S EXECUTION OF THIS AGREEMENT
AND VOLUNTARILY CONSENTS TO THIS WAIVER.


 


2.           Independent Contract Consideration.  The Seller and Purchaser agree that the
amount of One Hundred Dollars ($100.00) (the “Independent Contract
Consideration”) has been bargained for and delivered by the Purchaser to
the Seller as consideration for Seller’s execution and delivery of this
Agreement and for the Purchaser’s rights hereunder, and is independent of any
other consideration or payment provided for in this Agreement and,
notwithstanding anything to the contrary contained herein, is non-refundable in
all events.