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Exhibit
10.20
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525
Virginia Drive
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Fort
Washington, PA
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PURCHASE AND SALE
AGREEMENT
by and
between
HUB PROPERTIES
TRUST,
as
Seller,
and
SENIOR HOUSING PROPERTIES
TRUST,
as
Purchaser
May 5,
2008
TABLE
OF CONTENTS
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SECTION 1.
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DEFINITIONS
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1
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1.1.
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Agreement
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1
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1.2.
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Business Day
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1
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1.3.
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Closing
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1
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1.4.
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Closing Date
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1
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1.5.
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Existing
Survey
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1
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1.6.
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Existing Title
Policy
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2
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1.7.
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Improvements
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2
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1.8.
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Land
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2
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1.9.
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Leases
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2
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1.10.
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Other
Property
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2
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1.11.
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Permitted
Exceptions
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2
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1.12.
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Property
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2
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1.13.
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Purchase
Price
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2
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1.14.
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Purchaser
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3
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1.15.
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Rent Roll
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3
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1.16.
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Seller
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3
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1.17.
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Title
Company
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3
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1.18.
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Update
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3
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SECTION 2.
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PURCHASE AND SALE;
CLOSING.
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3
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2.1.
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Purchase and
Sale.
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3
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2.2.
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Closing.
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3
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2.3.
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Tenant Purchase
Option.
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4
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2.4.
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Purchase
Price.
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4
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SECTION 3.
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TITLE, DILIGENCE
MATERIALS, ETC.
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4
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3.1.
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Title.
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4
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3.2.
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No Other
Diligence.
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5
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SECTION 4.
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CONDITIONS TO THE
PURCHASER’S OBLIGATION TO CLOSE.
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6
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4.1.
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Closing
Documents.
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6
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4.2.
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Right of First
Refusal.
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7
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4.3.
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Title
Policy.
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7
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4.4.
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Environmental Reliance
Letters.
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7
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4.5.
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Condition of
Property.
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7
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4.6.
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Other
Conditions.
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7
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SECTION 5.
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CONDITIONS TO
SELLER’S OBLIGATION TO CLOSE.
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7
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5.1.
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Purchase
Price.
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7
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5.2.
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Closing
Documents.
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7
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5.3.
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Right of First
Refusal.
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8
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5.4.
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Other
Conditions.
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8
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SECTION 6.
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REPRESENTATIONS AND
WARRANTIES OF SELLER.
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8
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6.1.
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Status and Authority of
the Seller, Etc.
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8
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6.2.
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Action of the Seller,
Etc.
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8
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6.3.
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No Violations of
Agreements.
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8
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6.4.
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Litigation.
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8
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6.5.
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Existing Leases,
Etc.
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9
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i
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6.6.
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Agreements,
Etc.
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10
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6.7.
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Not a Foreign
Person.
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10
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SECTION 7.
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REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
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11
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7.1.
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Status and Authority of
the Purchaser.
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11
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7.2.
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Action of the
Purchaser.
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11
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7.3.
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No Violations of
Agreements.
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12
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7.4.
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Litigation.
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12
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SECTION 8.
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COVENANTS OF THE
SELLER.
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12
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8.1.
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Approval of
Agreements.
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12
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8.2.
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Operation of
Property.
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13
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8.3.
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Compliance with Laws,
Etc.
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13
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8.4.
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Compliance with
Agreements.
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13
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8.5.
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Notice of Material
Changes or Untrue Representations.
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13
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8.6.
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Insurance.
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13
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SECTION 9.
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APPORTIONMENTS.
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13
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9.1.
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Real Property
Apportionments.
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13
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9.2.
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Closing
Costs.
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16
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SECTION 10.
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DAMAGE TO OR
CONDEMNATION OF PROPERTY.
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16
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10.1.
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Casualty.
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16
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10.2.
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Condemnation.
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17
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10.3.
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Survival.
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17
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SECTION 11.
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DEFAULT.
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17
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11.1.
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Default by the
Seller.
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17
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11.2.
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Default by the
Purchaser.
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18
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SECTION 12.
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MISCELLANEOUS.
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18
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12.1.
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Allocation of
Liability.
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18
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12.2.
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Brokers.
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18
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12.3.
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Publicity.
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19
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12.4.
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Notices.
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19
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12.5.
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Waivers,
Etc.
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20
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12.6.
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Assignment; Successors
and Assigns.
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21
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12.7.
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Severability.
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21
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12.8.
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Counterparts,
Etc.
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21
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12.9.
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Performance on Business
Days.
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22
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12.10.
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Attorneys’
Fees.
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22
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12.11.
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Section and Other
Headings.
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22
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12.12.
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Time of
Essence.
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22
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12.13.
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Governing
Law.
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22
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12.14.
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Arbitration.
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22
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12.15.
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Like Kind
Exchange.
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23
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12.16.
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Recording.
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24
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12.17.
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Non-liability of
Trustees of Seller.
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24
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12.18.
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Non-liability of
Trustees of Purchaser.
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24
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12.19.
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Waiver and Further
Assurances.
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24
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ii
PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE
AGREEMENT is made as of May 5, 2008, by and between
HUB PROPERTIES TRUST , a Maryland real estate investment
trust (the “ Seller ”), and SENIOR HOUSING
PROPERTIES TRUST , a Maryland real estate investment trust (the
“ Purchaser ”).
WITNESSETH
:
WHEREAS, the Seller
is the owner of the Property (this and other capitalized terms used
and not otherwise defined herein shall have the meanings given such
terms in Section 1 ); and
WHEREAS, the Seller
wishes to sell to the Purchaser, and the Purchaser desires to
purchase from the Seller, the Property, subject to and upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE , in
consideration of the mutual covenants herein contained and other
good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the Seller and the
Purchaser hereby agree as follows:
SECTION 1.
DEFINITIONS .
Capitalized terms
used in this Agreement shall have the meanings set forth below or
in the section of this Agreement referred to below:
1.1.
“ Agreement
” shall mean this Purchase and Sale
Agreement, together with any exhibits and schedules attached
hereto, as it and they may be amended from time to time as herein
provided.
1.2.
“ Business Day
” shall mean any day other than a Saturday,
Sunday or any other day on which banking institutions in The
Commonwealth of Massachusetts are authorized by law or executive
action to close.
1.3.
“ Closing
” shall have the meaning given such term in
Section 2.2 .
1.4.
“ Closing Date
” shall have the meaning given such term in
Section 2.2 .
1.5.
“ Existing Survey
” shall mean the existing ALTA survey of the
Property.
1.6.
“ Existing Title
Policy ” shall mean, the
existing title insurance policy for the Property.
1.7.
“ Improvements
” shall mean, the Seller’s entire
right, title and interest in and to the existing office buildings,
fixtures and other structures and improvements situated on, or
affixed to, the Land.
1.8.
“ Land
” shall mean, the Seller’s entire
right, title and interest in and to (a) the parcel(s) of
land described in Schedule A hereto, together with
(b) all easements, rights of way, privileges, licenses and
appurtenances which the Seller may own with respect
thereto.
1.9.
“ Leases
” shall mean the leases identified in the
Rent Roll and any other leases hereafter entered into in accordance
with the terms of this Agreement.
1.10.
“ Other Property
” shall mean the Seller’s entire
right, title and interest in and to (a) all fixtures,
machinery, systems, equipment and items of personal property owned
by the Seller and attached or appurtenant to, located on and used
in connection with the ownership, use, operation or maintenance of
the Land or Improvements, if any, and (b) all intangible
property owned by the Seller arising from or used in connection
with the ownership, use, operation or maintenance of the Land or
Improvements, if any.
1.11.
“ Permitted
Exceptions ” shall mean,
collectively, (a) liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but
not yet delinquent; (b) the Leases; (c) the exceptions to
title set forth in the Existing Title Policy; (d) all matters
shown on the Existing Survey, and (e) such other nonmonetary
encumbrances with respect to the Property as may be shown on the
Update which are not objected to by the Purchaser (or which are
objected to, and subsequently waived, by the Purchaser) in
accordance with Section 3.1 .
1.12.
“ Property
” shall mean, collectively, all of the Land,
the Improvements and the Other Property.
1.13.
“ Purchase Price
” shall mean Nine Million Five Hundred
Ninety-Four Thousand One Hundred Sixty-Four Dollars
($9,594,164).
2
1.14.
“ Purchaser
” shall have the meaning given such term in
the preambles to this Agreement, together with any permitted
successors and assigns.
1.15.
“ Rent Roll
” shall mean Schedule B to
this Agreement.
1.16.
“ Seller
” shall have the meaning given such
term in the preambles to this Agreement, together with any
permitted successors and assigns.
1.17.
“ Title Company
” shall mean Lawyers Title Insurance
Corporation.
1.18.
“ Update
” shall have the meaning given such term in
Section 3.1 .
SECTION 2.
PURCHASE AND SALE; CLOSING
.
2.1.
Purchase and Sale .
In consideration of the payment of the
Purchase Price by the Purchaser to the Seller and for other good
and valuable consideration, the Seller hereby agrees to sell to the
Purchaser, and the Purchaser hereby agrees to purchase from the
Seller, the Property for the Purchase Price, subject to and in
accordance with the terms and conditions of this
Agreement.
2.2.
Closing .
The purchase and sale of the Property shall
be consummated at a closing (the “ Closing ”) to
be held at the offices of Sullivan & Worcester LLP, One
Post Office Square, Boston, Massachusetts, or at such other
location as the Seller and the Purchaser may agree, at
10:00 a.m., local time, on October 6, 2008, as the same
may be accelerated pursuant to this Section 2.2 (the
“ Closing Date ”).
Notwithstanding
the foregoing, either party may accelerate the Closing Date by
giving not less than ten (10) Business Days prior written
notice (an “ Acceleration Notice ”) to the
other, in which event the Closing Date shall be the date set forth
in such Acceleration Notice unless the party receiving the
Acceleration Notice gives written notice objecting to the
accelerated date set forth in the Acceleration Notice (a “
Rejection Notice ”) to the other within five
(5) Business Days after its receipt of the Acceleration
Notice, in which event, the Closing Date shall not be accelerated
but shall occur as set forth in the preceding paragraph;
provided , however , that the Seller shall have the
right to give a Rejection Notice only if the acceleration of the
Closing Date will adversely effect the Seller’s ability
to
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conclude a like
kind exchange pursuant to Section 12.15 , and the
Purchaser shall have the right to give a Rejection Notice only if
the Purchaser determines, in its reasonable discretion, that the
Purchaser does not, or will not, have adequate funds to close on
the accelerated Closing Date.
2.3.
Tenant Purchase Option .
The Seller has advised the Purchaser that
the tenant described in Schedule C has a right of first
refusal (the “ Right of First Refusal ”) to
purchase the Property. Promptly upon the execution hereof, the
Seller shall provide such tenant with such notice as may be
required to cause such tenant to exercise or waive its Right of
First Refusal. Such notice shall identify (a) the Purchase
Price and (b) any other applicable terms pursuant to such
Lease. The Seller shall give the Purchaser prompt notice of such
tenant’s exercise or waiver of its Right of First Refusal. In
the event that such tenant shall exercise its Right of First
Refusal, this Agreement shall terminate and be of no further force
and effect and neither party shall have any liability to the other
hereunder.
2.4.
Purchase Price
.
(a)
At Closing, the Purchaser shall pay the Purchase Price to the
Seller, subject to the following adjustments:
(i)
There shall be added to, or deducted from, the Purchase Price such
amounts as may be required by Article 9 .
(b)
The Purchase Price, as adjusted as provided herein, shall be
payable by wire transfer of immediately available funds on the
Closing Date to an account or accounts to be designated by the
Seller.
SECTION 3.
TITLE, DILIGENCE MATERIALS, ETC.
3.1.
Title . Prior to the
execution of this Agreement, the Seller has delivered the Existing
Title Policy and the Existing Survey to the Purchaser.
Within ten
(10) days after the execution hereof, the Purchaser shall
order an update to the Existing Title Policy (an “
Update ”) from the Title Company. The Purchaser shall
deliver to the Seller a copy of the Update promptly upon receipt
thereof. Promptly after receipt of the Update, but, in any event,
prior to the Closing Date, the Purchaser shall give the Seller
written notice of any title exceptions (other than Permitted
Exceptions) set forth on the Update as to which the
4
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 (5
th ) Business Day after the Seller’s notice of its
unwillingness or inability to cure (or deemed election not to cure)
such defect and time shall be of the essence with respect to the
giving of such notice. Failure of the Purchaser to give such notice
shall be deemed an election by the Purchaser to proceed in
accordance with clause (ii) above.
3.2.
No Other Diligence .
The Purchaser acknowledges that,
except as provided in Section 3.1 , (i) the
Purchaser has had the opportunity to fully investigate and inspect
the physical and environmental condition of the Property, and to
review and analyze all title examinations, surveys, environmental
assessment reports, building evaluations, financial data and other
investigations and materials pertaining to the Property which the
Purchaser deems necessary to determine the feasibility of the
Property and its decision to acquire the Property, (ii) the
Purchaser shall not be conducting any further title examinations,
surveys, environmental assessments, building evaluations, financial
analyses or other investigations with respect to the Property, and
(iii) the Purchaser shall not have any right to terminate this
Agreement as a result of any title examinations, surveys,
environmental assessments, building valuations, financial analyses
or other investigations with respect to the Property.
5
SECTION 4.
CONDITIONS TO THE PURCHASER’S
OBLIGATION TO CLOSE .
The obligation of
the Purchaser to acquire the Property shall be subject to the
satisfaction of the following conditions precedent on and as of the
Closing Date:
4.1.
Closing Documents .
The Seller shall have delivered, or cause to have
been delivered, to the Purchaser the following:
(a)
A good and sufficient deed in the form attached as Schedule
D 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 customary in like
6
transactions
in sales of property in similar transactions.
4.2.
Right of First Refusal .
The tenant under the Lease having a Right of
First Refusal shall have either exercised or waived its Right of
First Refusal.
4.3.
Title Policy .
The Title Company shall be prepared to
issue, upon payment of the title premium at its regular rates, a
title policy in the amount of the Purchase Price, insuring title to
the Property is vested in the Purchaser or its designee or
assignee, subject only to the Permitted Exceptions, with such
endorsements as shall be reasonably required by the
Purchaser.
4.4.
Environmental Reliance Letters
. The Purchaser shall have received a
reliance letter, authorizing
the Purchaser and its designees and assignees to rely on the most
recent environmental assessment report prepared for the Property,
in form and substance reasonably acceptable to t he
Purchaser.
4.5.
Condition of Property .
The Property shall be in substantially the
same physical condition as on the date of this Agreement, ordinary
wear and tear and, subject to Section 10.1 , casualty
excepted.
4.6.
Other Conditions .
All representations and warranties of the Seller
herein shall be true, correct and complete in all material respects
on and as of the Closing Date and the Seller shall have performed
in all material respects all covenants and obligations required to
be performed by the Seller on or before the Closing
Date.
SECTION 5.
CONDITIONS TO SELLER’S
OBLIGATION TO CLOSE .
The obligation of
the Seller to convey the Property to the Purchaser is subject to
the satisfaction of the following conditions precedent on and as of
the Closing Date:
5.1.
Purchase Price .
The Purchaser shall deliver to the Seller
the Purchase Price payable hereunder, subject to the adjustments
set forth in Section 2.4 , 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.
7
5.3.
Right of First Refusal
. The tenant under the Lease having a Right of First
Refusal shall have either exercised or waived its Right of First
Refusal.
5.4.
Other Conditions .
All representations and warranties of the Purchaser herein shall be
true, correct and complete in all material respects on and as of
the Closing Date and the Purchaser shall have performed in all
material respects all covenants and obligations required to be
performed by the Purchaser on or before the Closing
Date.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER .
To induce the
Purchaser to enter into this Agreement, the Seller represents and
warrants to the Purchaser as follows:
6.1.
Status and Authority of the Seller,
Etc. The Seller is duly organized, validly existing
and in good standing under the laws of its state of organization or
formation, and has all requisite power and authority under its
charter documents to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated
hereby.
6.2.
Action of the Seller, Etc.
The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and upon the
execution and delivery of any document to be delivered by the
Seller on or prior to the Closing Date, this Agreement and such
document shall constitute the valid and binding obligation and
agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws of general application affecting the rights and remedies of
creditors.
6.3.
No Violations of Agreements
. Neither the execution, delivery or performance of this
Agreement by the Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon the Property pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness
or any other agreement or instrument by which the Seller is
bound.
6.4.
Litigation . To the
Seller’s actual knowledge, it has not received written notice
that any investigation, action or proceeding is pending or
threatened, which (i) questions the
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validity of this
Agreement or any action taken or to be taken pursuant hereto, or
(ii) involves condemnation or eminent domain proceedings
against the Property or any portion thereof.
6.5.
Existing Leases, Etc.
Subject to Section 8.1 , other than the
Leases listed in the Rent Roll, the Seller has not entered into a
contract or agreement with respect to the occupancy of the Property
that will be binding on the Purchaser after the Closing. To
the Seller’s actual knowledge: (a) the copies of the
Leases heretofore delivered by the Seller to the Purchaser are
true, correct and complete copies thereof; and (b) such Leases
have not been amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between the Seller
and the tenants thereunder. Except as otherwise set forth in
the Rent Roll or the Leases: (i) to the Seller’ actual
knowledge, each of its Leases is in full force and effect on the
terms set forth therein; (ii) to the Seller’s actual
knowledge, there are no uncured defaults or circumstances which
with the giving of notice, the passage of time or both would
constitute a default thereunder which would 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
9
Property;
(viii) to the Seller’s actual knowledge, none of its
tenants has requested in writing a modification of its Lease, or a
release of its obligations under its Lease in any material respect
or has given written notice terminating its Lease, or has been
released of its obligations thereunder in any material respect
prior to the normal expiration of the term thereof, in any case
that would have a material adverse effect on the on-going business
or operations of the Property; (ix) to the Seller’s
actual knowledge, except as set forth in the Leases, no guarantor
has been released or discharged, voluntarily or involuntarily, or
by operation of law, from any obligation under or in connection
with any of its Leases or any transaction related thereto; and
(x) all brokerage commissions currently due and payable with
respect to each of its Leases have been paid. To the
Seller’s actual knowledge, the other information set forth in
the Rent Roll is true, correct and complete in all material
respects.
6.6.
Agreements, Etc.
Other than the Leases, the Seller has not entered into any contract
or agreement with respect to 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 p
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