Exhibit 10.4


 


FIRST
AMENDMENT TO PURCHASE AGREEMENT


 


THIS FIRST
AMENDMENT TO PURCHASE AGREEMENT (this “Amendment”) is made as
of December 23,  2008
by and between HUB PROPERTIES TRUST,
a Maryland real estate investment trust (the “Seller”), and SENIOR HOUSING PROPERTIES TRUST, a Maryland
real estate investment trust (the “Purchaser”).


 


W I T N E S S E T H


 


WHEREAS, the Seller and the Purchaser executed a
Purchase and Sale Agreement dated as of May 5, 2008 (the “Purchase
Agreement”), with respect to the Property (this and other capitalized terms
used and not otherwise defined herein shall have the meanings given such terms
in the Purchase Agreement) described in Exhibit A hereto; and


 


WHEREAS, the Seller and the Purchaser now wish to
amend the Purchase Agreement subject to and upon the terms and conditions set
forth herein;


 


NOW, THEREFORE, for good and valuable consideration and in
consideration of the mutual covenants of the parties hereto, the mutual receipt
and legal sufficiency of which is hereby acknowledged, Landlord and Tenant
hereby agree as follows:


 


1.             Section 2.2 is hereby
deleted in its entirety and the following is inserted in substitution therefor:


 


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 May 30, 2010 (the “Closing Date”).


 


2.             The Purchase Agreement
is hereby amended by adding the following paragraph after Section 8.6
thereof:


 


8.7            Approval of 2009 and 2010 Capital Expenditure Budgets.  The
Seller shall prepare for the Purchaser’s review and approval a 2009 capital
expenditure budget (the “2009 CapEx Budget”) and 2010 capital
expenditure budget (the “2010 CapEx Budget”) (in each case, including,
without limitation, budgeted items for “building improvements” and “development
and redevelopment”).


 





















 


3.             Subsections 9(g) and
(h) are hereby deleted in their entirety and the following are
inserted in substitution therefor:


 


(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 2008 capital
expenditure budget previously prepared by the Seller (the “2008 CapEx Budget”),
the 2009 CapEx Budget and the 2010 CapEx Budget (together with the 2008 CapEx
Budget and the 2009 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.


 


4.             As amended
hereby, the Agreement is in full force and effect and is hereby ratified and
confirmed.


 


5.             This Amendment may be executed in a number of
identical counterparts.  If so executed,
each counterpart is to be deemed an original for all purposes, and all such
counterparts shall, collectively, constitute one agreement.  Such executed counterparts may be delivered
by facsimile or by e-mail (in .pdf 


 

















 


format) and any such counterparts so delivered shall be
deemed original documents for all purposes.


 


6.             The Declaration of Trust of the Seller, a copy of
which is duly filed with the Department of Assessments and Taxation of the
State of Maryland, provides that the name “Hub Properties Trust” refers to the
trustees under such Declaration of Trust collectively as trustees, but not
individually or personally, and 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.


 


7.             The Declaration of Trust of the Purchaser, a copy of
which is duly filed with the Department of Assessments and Taxation of the
State of Maryland, provides that the name “Senior Housing Properties Trust”
refers to the trustees under such Declaration of Trust collectively as
trustees, but not individually or personally, and that no trustee, officer,
shareholder, employee or agent of the Purchaser shall be held to any personal
liability, jointly or severally, for any obligation of, or claim against, the
Purchaser.  All persons dealing with the
Purchaser in any way shall look only to the assets of the Purchaser for the
payment of any sum or the performance of any obligation.


 


[Signature page follows.]


 

















 


IN WITNESS
WHEREOF, the Seller
and the Purchaser have executed this Amendment under seal as of the date above
first written.


 


	
  WITNESS:

  	
  SELLER:  

  
	
   

  	
   

  
	
  /s/ Jennifer B. Clark

  	
   

  	
  HUB
  PROPERTIES TRUST, a
  Maryland real estate 

  investment trust

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John C. Popeo

  
	
   

  	
   

  	
  Name: 

  	
  John
  C. Popeo

  
	
   

  	
   

  	
  Its:

  	
  Treasurer

  
	
   

  	
   

  
	
  WITNESS:

  	
  PURCHASER:

  
	
   

  	
   

  
	
  /s/ Jennifer B. Clark

  	
   

  	
  SENIOR
  HOUSING PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David J. Hegarty

  
	
   

  	
   

  	
  Name: 

  	
  David
  J. Hegarty

  
	
   

  	
   

  	
  Its:

  	
  President

  
						



 

















 


EXHIBIT A


 


Address of Property


 


Torrey Pines, 3030-50
Science Park Road, San Diego, California