Exhibit 10.3


 


One Southern
Court

West Columbia, SC


 


PURCHASE AND SALE AGREEMENT


 


 


by and between


 


 


HUB PROPERTIES 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

  



 


- 2 -

















 


PURCHASE AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT is made as of November 12,
2010, 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 Four Million Seven Hundred One
Thousand Eight Hundred Dollars ($4,701,800).


 


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 September 12,
1996, 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.


 


[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:

  
	
   

  	
   

  
	
   

  	
  HUB PROPERTIES 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.]


 


 
















 


One Southern Court

West Columbia, SC


 


Legal Description


 


All that certain piece, parcel or lot of land, together
with all improvements thereon, situate, lying and being in the County of
Lexington, State of South Carolina, and being shown and delineated as Lot B,
Containing 5.04 Acres on a plat prepared for R. Mike Stamps by Ronald W.
Fisher, P.L.S. #17296, dated February 11, 1994, and recorded in the Office
of the Register of Deeds for Lexington County, SC in Plat Book 283, at Page 57;
said lot having such boundaries and measurements as shown on said plat.


 


All that certain piece, parcel or lot of land, with  the improvements thereon, situate, lying and
being in the Town of West Columbia, County of Lexington, State of South
Carolina, containing .20 acre and shown on a plat prepared for Mike R. Stamps
by Benjamin H. Whetstone Associates dated September 20, 1999, recorded in
the Office of the Register of Deeds for Lexington County in Plat Book 288, at Page 541
and having the following metes and bounds: 
Beginning at the southeast corner of said property and running S 87° 47’
11” W along the right of way of Southern Court for a distance of Twelve (12.00)
feet to an iron; thence turning and running along a curve the chord of which
runs N 51° 15’ 53” W along the right of way of Southern Court for a distance of
32.77 feet to an iron; thence turning and running along the curve the chord of
which runs N 11° 04’ 03” W along the right of way of Lott Court for a distance
of 41.96’ to an iron; thence turning and running along a curve the chord of
which runs N 15° 48’ 38” E along the right of way of Lott Court for a distance
of 27.14 feet to an iron; thence turning and running along a curve, the chord
of which runs N 05° 50’ 06” E along the right of way of Lott Court for a distance
of 68.73 feet to an iron; thence turning and running along a curve, the chord
of which runs N 56° 06’ 03” W along the right of way of Lott Court for a
distance of 35.37 feet to an iron; thence turning and running S 75° 59’ 27” E
along a portion of Lot 3 as shown on said plat for a distance of 33.17 feet to
an iron; thence turning and running S 76° 13’ 13” E along a portion of Lot 3
for a distance of 67.96 feet to an iron; thence turning and running S 13° 57’
54” W along Lot B as shown on said plat for a distance of 155.82 feet to the
point of beginning; be all measurements a little more or less.


 


Less and except Parcel D 1 on Slide 76, Plat 8


 

















 


SCHEDULE B


 


Rent Roll


 


[See attached copy.]


 

















 


INDEX


Lease


 


One Southern CT


PSS World Medical


 


1.                                    Lease
Agreement,
dated October 1, 2005, by and between Palmetto Park Associates - One
Southern Court, LLC (“Landlord”) and Southern Anesthesia & Surgical, Inc.
(“Tenant”).


 


2.                                    Confirmation
of Assignment and Assumption of Lease, dated March 31, 2007, by and between PSS World
Medical, Inc. (“Parent Company”), Hub Properties Trust, successor in
interest to Palmetto Park Associates - One Southern Court, LLC (“Landlord”),
Southern Anesthesia & Surgical, Inc. (“Subsidiary Company”).  Note: Per
Articles of Merger and Agreement and Plan of Merger dated March 23, 2007,
Southern Anesthesia & Surgical, Inc., the Subsidiary Company
merged with and into PSS World Medical, Inc., the Parent Company.


 

















 


SCHEDULE C


 


Form of Deed


 

















 


Prepared by (and after recording


return to):


 


Elizabeth S. Wigon, Esq.


Sullivan & Worcester LLP


One Post Office Square


Boston, MA  02109


 


At the Direction of:


 


[   insert name of attorney]


Nelson Mullins Riley & Scarborough, LLP


Meridian, 17th Floor


1320 Main Street


Columbia, SC 29201


 


LIMITED WARRANTY DEED


(One Southern Court, West Columbia, South Carolina)


 


STATE OF
SOUTH CAROLINA     )


                                                         
  )        LIMITED
WARRANTY DEED


COUNTY OF
___________________        )


 


KNOW ALL MEN BY THESE PRESENTS, that PALMETTO PARK ASSOCIATES - ONE SOUTHERN COURT LLC,
a South Carolina limited liability company (the “Grantor”), whose
address is 164 Lott Court, West Columbia, South Carolina 29160, for and in
consideration of FIVE MILLION DOLLARS ($5,000,000), paid at and before the
sealing of these presents by HUB PROPERTIES
TRUST, a Maryland real estate investment trust (the “Grantee”),
whose address is c/o HRPT Properties Trust, 400 Centre Street, Newton,
Massachusetts 02458, the receipt and sufficiency of which are hereby
acknowledged, have granted, bargained, sold and released, and by these presents
does grant, bargain, sell and release, unto the said Grantee, its successors
and assigns forever, the following described property to wit:


 

















 


See Exhibit A attached hereto and
incorporated herein by reference.


 


TOGETHER with all and singular, the rights, members,
hereditaments and appurtenances to the said premises belonging, or in anywise
incident or appertaining.


 


TO HAVE AND TO HOLD all and singular the premises before
mentioned unto the said Grantee, its successors and assigns, forever.


 


And the Grantor does hereby bind itself and its
successors and assigns, to warrant and forever defend, all and singular, said
premises unto the said Grantee, its successors and assigns, against itself and
its successors and assigns, and any persons whomsoever lawfully claiming by,
through or under Grantor, but not otherwise, the same or any part thereof.


 


THIS CONVEYANCE is made expressly subject to the matters
set forth on Exhibit B attached hereto and incorporated herein by
reference.


 


 


[INTENTIONALLY LEFT BLANK; SIGNATURES CONTAINED ON
NEXT PAGE]


 

















 


WITNESS its hand and seal as of the ___ day of December,
2006.


 


	
   

  	
  GRANTOR:

  
	
   

  	
   

  
	
  Signed, sealed and

  	
  PALMETTO PARK ASSOCIATES -

  
	
  delivered in the presence 

  	
  ONE SOUTHERN COURT LLC,

  
	
  of:

  	
  a South Carolina limited
  liability 

  
	
   

  	
  company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  
							



 

















 


STATE OF SOUTH CAROLINA      )


                                               
           )            ACKNOWLEDGEMENT


COUNTY OF _______________________   )


 


The foregoing instrument was acknowledged before me this
____ day of December, 2006, by ___________________, ___________________ of PALMETTO PARK ASSOCIATES - ONE SOUTHERN COURT LLC,
a South Carolina limited liability company, on behalf of the limited liability
company.


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  My commission expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  [NOTARY SEAL]

  



 

















 


One Southern Court


West Columbia, South
Carolina


 


Exhibit A


 


Legal Description


 


[see attached]


 

















 


Exhibit B


 


PERMITTED EXCEPTIONS