Exhibit 10.13


 


3000 Goffs
Falls Rd.

Manchester, NH


 


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

  	
  3

  
	
  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.

  	
  4

  
	
  3.1

  	
  Title

  	
  4

  
	
  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

  	
  7

  
	
  5.1

  	
  Purchase Price

  	
  7

  
	
  5.2

  	
  Closing Documents

  	
  7

  
	
  5.3

  	
  Other Conditions

  	
  7

  
	
  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

  	
  8

  
	
  6.5

  	
  Existing Leases, Etc.

  	
  8

  
	
  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

  	
  11

  
	
  7.2

  	
  Action of the Purchaser

  	
  11

  
	
  7.3

  	
  No Violations of Agreements

  	
  11

  
	
  7.4

  	
  Litigation

  	
  11

  
	
  SECTION 8.

  	
  COVENANTS OF THE SELLER

  	
  12

  
	
  8.1

  	
  Approval of Agreements

  	
  12

  
	
  8.2

  	
  Operation of Property

  	
  12

  
	
  8.3

  	
  Compliance with Laws, Etc.

  	
  12

  
	
  8.4

  	
  Compliance with Agreements

  	
  12

  
	
  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

  	
  13

  
	
  9.1

  	
  Real Property Apportionments

  	
  13

  
	
  9.2

  	
  Closing Costs

  	
  16

  
	
  SECTION 10.

  	
  DAMAGE TO OR CONDEMNATION OF PROPERTY

  	
  16

  
	
  10.1

  	
  Casualty

  	
  16

  
	
  10.2

  	
  Condemnation

  	
  17

  
	
  10.3

  	
  Survival

  	
  17

  
	
  SECTION 11.

  	
  DEFAULT

  	
  18

  
	
  11.1

  	
  Default by the Seller

  	
  18

  
	
  11.2

  	
  Default by the Purchaser

  	
  18

  
	
  SECTION 12.

  	
  MISCELLANEOUS

  	
  18

  
	
  12.1

  	
  Allocation of Liability

  	
  18

  
	
  12.2

  	
  Brokers

  	
  18

  
	
  12.3

  	
  Publicity

  	
  19

  
	
  12.4

  	
  Notices

  	
  19

  
	
  12.5

  	
  Waivers, Etc.

  	
  20

  
	
  12.6

  	
  Assignment; Successors and Assigns

  	
  21

  
	
  12.7

  	
  Severability

  	
  21

  
	
  12.8

  	
  Counterparts Complete Agreement, Etc.

  	
  22

  
	
  12.9

  	
  Performance on Business Days

  	
  22

  
	
  12.10

  	
  Attorneys’ Fees

  	
  22

  
	
  12.11

  	
  Section and Other Headings

  	
  22

  
	
  12.12

  	
  Time of Essence

  	
  22

  
	
  12.13

  	
  Governing Law

  	
  22

  
	
  12.14

  	
  Arbitration

  	
  22

  
	
  12.15

  	
  Like Kind Exchange

  	
  23

  
	
  12.16

  	
  Recording

  	
  24

  
	
  12.17

  	
  Non-liability of Trustees of Seller

  	
  24

  
	
  12.18

  	
  Non-liability of Trustees of Purchaser

  	
  24

  
	
  12.19

  	
  Waiver and Further Assurances

  	
  24

  



 


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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 Twenty-Five Million Three Hundred
Forty-Two Thousand Six Hundred Eighty Dollars ($25,342,680).


 


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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 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.


 


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SECTION 3.                                  TITLE, DILIGENCE MATERIALS, ETC.


 


3.1                            Title.  Prior to the execution of this Agreement, the
Seller has delivered the Existing Title Policy and the Existing Survey to the
Purchaser.


 


Within ten (10) days after the execution hereof,
the Purchaser shall order an update to the Existing Title Policy (an “Update”)
from the Title Company.  The Purchaser
shall deliver to the Seller a copy of the Update promptly upon receipt
thereof.  Promptly after receipt of the
Update, but, in any event, prior to the Closing Date, the Purchaser shall give
the Seller written notice of any title exceptions (other than Permitted Exceptions)
set forth on the Update as to which the Purchaser objects.  The Seller shall have the right, but not the
obligation, to attempt to remove, satisfy or otherwise cure any exceptions to
title to which the Purchaser so objects. 
If, for any reason, in its sole discretion, the Seller is unable or
unwilling to take such actions as may be required to cause such exceptions to
be removed from the Update, the Seller shall give the Purchaser notice thereof;
it being understood and agreed that the failure of the Seller to give prompt
notice of objection shall be deemed an election by the Seller not to remedy
such matters.  If the Seller shall be
unable or unwilling to remove any title defects to which the Purchaser has so
objected, the Purchaser may elect (i) to terminate this Agreement or (ii) to
consummate the transactions contemplated hereby, notwithstanding such title
defect, without any abatement or reduction in the Purchase Price on account
thereof (whereupon 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) 


 


- 4 -

















 


the Purchaser shall not be
conducting any further title examinations, surveys, environmental assessments,
building evaluations, financial analyses or other investigations with respect to
the Property, and (iii) the Purchaser shall not have any right to
terminate this Agreement as a result of any title examinations, surveys,
environmental assessments, building valuations, financial analyses or other
investigations with respect to the Property.


 


SECTION 4.                                                          CONDITIONS
TO THE PURCHASER’S OBLIGATION TO CLOSE.


 


The obligation of the Purchaser to acquire the
Property shall be subject to the satisfaction of the following conditions
precedent on and as of the Closing Date:


 


4.1                            Closing
Documents.  The Seller shall have delivered,
or cause to have been delivered, to the Purchaser the following:


 


(a)                       (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 Lease 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)                      All approvals and consents, if any, required from the
City of Manchester, New Hampshire, in connection with the assignment of any
development agreement or related document affecting the Property;


 


- 5 -

















 


(e)                       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;


 


(f)                          To the extent the same are
in the Seller’s possession, duly executed original copies of the Leases;


 


(g)                       A closing statement showing
the Purchase Price, apportionments and fees, and costs and expenses paid in
connection with the Closing; and


 


(h)                       Such other conveyance
documents, certificates, deeds and other instruments as the Purchaser, the
Seller or the Title Company may reasonably require and as are customary in like
transactions in sales of property in similar transactions.


 


4.2                            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.


 


- 6 -
















 


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.


 


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 


 


- 7 -

















 


compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon the Property pursuant to the
terms of any indenture, mortgage, deed of trust, note, evidence of indebtedness
or any other agreement or instrument by which the Seller is bound.


 


6.4                            Litigation.  To the Seller’s actual knowledge, it has not
received written notice that any investigation, action or proceeding is pending
or threatened, which (i) questions
the validity of this Agreement or any action taken or to be taken pursuant
hereto, or (ii) involves
condemnation or eminent domain proceedings against the Property or any portion thereof.


 


6.5                            Existing
Leases, Etc.  Subject to Section 8.1,
other than the Leases listed in the Rent Roll, the Seller has not entered into
a contract or agreement with respect to the occupancy of the Property that will
be binding on the Purchaser after the Closing. 
To the Seller’s actual knowledge: (a) the copies of the Leases
heretofore delivered by the Seller to the Purchaser are true, correct and
complete copies thereof; and (b) such Leases have not been amended except
as evidenced by amendments similarly delivered and constitute the entire
agreement between the Seller and the tenants thereunder.  Except as otherwise set forth in the Rent
Roll or the Leases: (i) to the Seller’ actual knowledge, each of its
Leases is in full force and effect on the terms set forth therein; (ii) to
the Seller’s actual knowledge, there are no uncured defaults or circumstances
which with the giving of notice, the passage of time or both would constitute a
default thereunder which would 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 


 


- 8 -

















 


petition in bankruptcy or for the
approval of a plan of reorganization or management under the Federal Bankruptcy
Code or under any other similar state law, or made an admission in writing as
to the relief therein provided, or otherwise become the subject of any
proceeding under any federal or state bankruptcy or insolvency law, or has
admitted in writing its inability to pay its debts as they become due or made
an assignment for the benefit of creditors, or has petitioned for the
appointment of or has had appointed a receiver, trustee or custodian for any of
its property, in any case that would have a material adverse effect on the
business or operations of the Property; (viii) to the Seller’s actual
knowledge, none of its tenants has requested in writing a modification of its
Lease, or a release of its obligations under its Lease in any material respect
or has given written notice terminating its Lease, or has been released of its
obligations thereunder in any material respect prior to the normal expiration
of the term thereof, in any case that would have a material adverse effect on
the on-going business or operations of the Property; (ix) to the Seller’s
actual knowledge, except as set forth in the Leases, no guarantor has been
released or discharged, voluntarily or involuntarily, or by operation of law,
from any obligation under or in connection with any of its Leases or any
transaction related thereto; and (x) all brokerage commissions currently
due and payable with respect to each of its Leases have been paid.  To the Seller’s actual knowledge, the other
information set forth in the Rent Roll is true, correct and complete in all
material respects.


 


6.6                            Agreements, Etc.  Other than the Leases, the Seller has not
entered into any contract or agreement with respect to 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 


 


- 9 -

















 


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 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:


 


- 10 -

















 


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, 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.


 


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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.


 


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”).


 


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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 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 


 


- 13 -

















 


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.


 


(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 


 


- 14 -

















 


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 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 


 


- 15 -

















 


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, (iii) fifty percent (50%) of all costs, fees and expenses,
including, without, limitation, attorneys’ fees and expenses, incurred in
connection with the implementation of the provisions of Section 4.1(d),
and (iv) 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, and (iii) fifty
percent (50%) of all costs, fees and expenses, including, without, limitation,
attorneys’ fees and expenses, incurred in connection with the implementation of
the provisions of Section 4.1(d).


 


(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.


 


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 


 


- 16 -

















 


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.


 


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


 


- 17 -
















 


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 contemplated hereby.  Each party shall indemnify and hold harmless
the other party and its respective legal 


 


- 18 - 

















 


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,


 


- 19 - 

















 


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 


 


- 20 - 

















 


failure at
any time or times to enforce or require performance 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.


 


- 21 - 

















 


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 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 


 


- 22 - 

















 


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
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 


 


- 23 - 

















 


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 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 


 


- 24 - 

















 


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 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.]


 


- 25 - 

















 


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

  



 


- 26 - 
















 


SCHEDULE A


 


Land


 


[See attached legal description.]


 

















 


3000 Goffs Falls Road

Manchester, NH


 


Tract 1:


 


A certain lot of land situated in the City of
Manchester, County of Hillsborough, State of New Hampshire, shown as Lots 1 and
1A on “Subdivision Plan of Pine Island Park, Manchester, N.H.” dated May 23,
1975, prepared by Thomas F. Moran, Inc. and recorded at the Hillsborough
County Registry of Deeds as Plan No. 9375, and more particularly described
as follows:


 


Beginning at a granite bound on the east side of Goffs
Falls Road, said point also being the southwest corner of land now or formerly
of Peter J. and Lillian King, said point also being the northwest corner of the
tract herein described;


 


Thence by the easterly side of Goffs Falls Road, South
23° 31’ 40” West, a distance of 118.45 feet to a granite bound;


 


Thence southwesterly by a curve to the right of radius
987.88 feet a distance of 186.79 feet to a New Hampshire Highway Department
bound;


 


Thence South 34° 21’ 45” West, a distance of 444.60
feet;


 


Thence southwesterly by a curve to the left of radius
1,399.50 feet a distance of 706.33 feet to the northwest corner of land of
Nicholas and K. Zaworotny, said last four courses being by the easterly
right-of-way line of Goffs Falls Road;


 


Thence South 80° 43’ 30” East, a distance of 256.71 feet
to a granite bound;


 


Thence South 6° 31’ 45” West, a distance of 90.54 feet
to a granite bound;


 


Thence South 12° 38’ 55” East, a distance of 126.61 feet
to a granite bound;


 


Thence South 26° 05’ 05” East, a distance of 163.42 feet
to a granite bound at the southeast corner of land now or formerly of
Zaworotny, said last four courses being by land of Zaworotny;


 


Thence North 50° 34’ 50” East, a distance of 100.00 feet
to a stone bound;


 


Thence South 45° 53’ 30” East, a distance of 233.31 feet
to a stone bound;


 

















 


Thence South 45° 53’ 30” East, a distance of 4 feet,
more or less, to the shore of Pine Island Pond;


 


Thence northeasterly and northwesterly by the shore of
Pine Island Pond, a distance of 2,280 feet, more or less, to a point 6 feet,
more or less, from an iron pipe near the shore of the inlet north of North
Island;


 


Thence westerly by the shore of the inlet north of North
Island, a distance of 380 feet, more or less, to a point at the southern corner
of land now or formerly of Peter J. and Lillian King, said point being 5 feet,
more or less, from a granite bound;


 


Thence North 71’ 14’ 00” West, a distance of 5 feet,
more or less, along said King land to the granite bound cited above;


 


Thence continuing along said King land North 71° 14’ 00”
West, a distance of 70.00 feet to a granite bound at the east side of Goffs
Falls Road, said point being also the point of beginning.


 


Tract 2:


 


A certain parcel of land situated in the City of
Manchester, County of Hillsborough, State of New Hampshire, as shown on a plan
called “Additional Right of Way Acquisition, Goffs Falls Road Realignment
Dedicated by Home Insurance Co.” dated May 1977, prepared by Thomas S.
Moran, Inc. and recorded at the Hillsborough County Registry of Deeds as
Plan No. 10941, more particularly bounded and described as follows:


 


Beginning at the most northerly point of the tract at
the intersection’s easterly sideline of Brown Avenue and the westerly sideline
of Jeffery Street;


 


Thence turning and running along a curve to the left
with a radius of 827.65 feet and a delta angle of 8° 43’ 27” a distance of
126.02 feet to a point;


 


Thence turning and running south 33° 22’ 08” West a
distance of 427.53 feet to a point; thence turning and running along a curve to
the left with a radius of 735.54 feet and a delta angle of 40° 38’ 40” a
distance of 469.72 feet;


 


Thence turning and running along a curve to the left
with a radius of 735.54 feet and a delta angle of 4° 03’ 18” a distance of
52.06 feet to a point;


 

















 


Thence turning and running South 7° 16’ 32” East a
distance of 67.94 feet to a point at the westerly side of Goffs Falls Road, the
last five courses being along the easterly sideline of Brown Avenue;


 


Thence turning and running along a curve to the right
with a radius of 1,465.50 and a delta angle of 4’ 17’ 59” a distance of 109.97
feet to a point;


 


Thence turning and running along a curve to the right
with a radius of 1,465.50 and a delta angle of 16° 34’ 02” a distance of 423.76
feet;


 


Thence turning and running North 31° 54’ 38” East a
distance of 120.00 feet to a point at the westerly sideline of Jeffery Street,
the last three courses being along the westerly sideline of Goffs Falls Road;


 


Thence turning and running North 14° 45’ 43” East a
distance of 196.87 feet to a point;


 


Thence turning and running North 21° 06’ 38” East a
distance of 263.80 feet to the point of beginning, the last two courses being
along Jeffery Street.


 


Meaning and intending to describe the same premises
conveyed to New Hampshire-Vermont Health Service d/b/a Blue Cross and Blue
Shield of New Hampshire by the Warranty Deed of The Home Insurance Company
dated August 13, 1992, and recorded at the Hillsborough County Registry of
Deeds, Book 5361, Page 231.


 

















 


SCHEDULE B


 


Rent Roll


 


[See attached copy.]


 

















 


INDEX


Lease


 


3000 Goffs Falls Road


Anthem Health Plans of NH


 


1.                                    Lease
Agreement, dated May 10, 1999, by and between Barry M. Portnoy and Gerard M.
Martin, Trustees of Hub Properties Trust under a Declaration of Trust dated September 12,
1996 (“Landlord”) and New Hampshire Vermont Health Services d/b/a Blue Cross
Blue Shield of New Hampshire (“Lessee”).


 


2.                                    Assignment
and Assumption of Lease, dated October 27, 1999, by and between New
Hampshire-Vermont Health Service d/b/a Blue Cross Blue Shield of New Hampshire
(“Assignor”) and Anthem Health Plans of New Hampshire, Inc. (“Assignee”).


 


 

















 


SCHEDULE C


 


Form of Deed


 

















 


WARRANTY DEED


 


NEW HAMPSHIRE-VERMONT HEALTH SERVICE, d/b/a Blue Cross
and Blue Shield of New Hampshire, a New Hampshire corporation, with a place of
business at 3000 Goffs Falls Road, City of Manchester, County of Hillsborough,
State of New Hampshire 03101, (hereinafter called the “Grantor”), for
consideration paid, grants to Barry M. Portnoy and Gerard M. Martin, Trustees
of Hub Properties Trust under a Declaration of Trust dated September 12,
1996, a Maryland real estate investment trust with a place of business at c/o
REIT Management & Research, Inc., 400 Centre Street, Newton,
Massachusetts 02458, with Warranty Covenants:


 


Tract 1:


 


A certain lot of land together with the buildings and
improvements thereon situated in the City of Manchester, County of
Hillsborough, State of New Hampshire, shown as Lots 1 and 1A on “Subdivision
Plan of Pine Island Park, Manchester, N.H.” dated May 23, 1975, prepared
by Thomas F. Moran, Inc. and recorded at the Hillsborough County Registry
of Deeds as Plan No. 9375, and more particularly described as follows


 


Beginning at a granite bound on the east side of
Goffs Falls Road, said point also being the southwest corner of land now or
formerly of Peter J. and Lillian King, said point also being the northwest
corner of the tract herein described;


 


Thence by the easterly side of Goffs Falls Road,
South 23° 31’ 40” West, a distance of 118.45 feet to a granite bound;


 


Thence southwesterly by a curve to the right of
radius 987.88 feet a distance of 186.79 feet to a New Hampshire Highway
Department bound;


 


Thence South 34° 21’ 45” West, a distance of 444.60
feet;


 


Thence southwesterly by a curve to the left of radius
1,399.50 feet a distance of 706.33 feet to the northwest corner of land of
Nicholas and K. Zaworotny, said last four courses being by the easterly
right-of-way line of Goffs Falls Road;


 


Thence South 80° 43’ 30” East, a distance of 256.71 


 

















 


feet to a granite bound;


 


Thence South 6° 31’ 45” West, a distance of 90.54
feet to a granite bound;


 


Thence South 12° 38’ 55” East, a distance of 126.61
feet to a granite bound;


 


Thence South 26° 05’ 05” East, a distance of 163.42
feet to a granite bound at the southeast corner of land now or formerly of
Zaworotny, said last four courses being by land of Zaworotny;


 


Thence North 50° 34’ 50” East, a distance of 100.00
feet to a stone bound;


 


Thence South 45° 53’ 30” East, a distance of 233.31
feet to a stone bound;


 


Thence South 45° 53’ 30” East, a distance of 4 feet,
more or less, to the shore of Pine Island Pond;


 


Thence northeasterly and northwesterly by the shore
of Pine Island Pond, a distance of 2,280 feet, more or less, to a point 6 feet,
more or less, from an iron pipe near the shore of the inlet north of North
Island;


 


Thence westerly by the shore of the inlet north of
North Island, a distance of 380 feet, more or less, to a point at the southern
corner of land now or formerly of Peter J. and Lillian King, said point being 5
feet, more or less, from a granite bound;


 


Thence North 71° 14’ 00” West, a distance of 5 feet,
more or less, along said King land to the granite bound cited above;


 


Thence continuing along said King land North 71° 14’ 00”
West, a distance of 70.00 feet to a granite bound at the east side of Goffs
Falls Road, said point being also the point of beginning.


 


Tract 2:


 


A certain parcel of land situated in the City of
Manchester, County of Hillsborough, State of New Hampshire, as shown on a plan
called “Additional Right of Way Acquisition, Goffs Falls Road Realignment
Dedicated by Home Insurance Co.” dated May 1977, prepared by Thomas S.
Moran, 


 

















 


Inc. and recorded at the Hillsborough County Registry of
Deeds as Plan No. 10941, more particularly bounded and described as
follows:


 


Beginning at the most northerly point of the tract at
the intersection’s easterly sideline of Brown Avenue and the westerly sideline
of Jeffery Street;


 


Thence turning and running along a curve to the left
with a radius of 827.65 feet and a delta angle of 8° 43’ 27” a distance of
126.02 feet [erroneously described as a distance of 95.28 feet in the Warranty
Deed of The Home Insurance Company dated August 13, 1992, recorded at the
Hillsborough County Registry of Deeds at Book 5361, Page 231] to a point;


 


Thence turning and running south 33° 22’ 08” West a
distance of 427.53 feet to a point;


 


Thence turning and running along a curve to the left
with a radius of 735.54 feet and a delta angle of 40° 38’ 40” a distance of
469.72 feet;


 


Thence turning and running along a curve to the left
with a radius of 735.54 feet and a delta angle of 4° 03’ 18” a distance of
52.06 feet to a point;


 


Thence turning and running South 7° 16’ 32” East a
distance of 67.94 feet to a point at the westerly side of Goffs Falls Road, the
last five courses being along the easterly sideline of Brown Avenue;


 


Thence turning and running along a curve to the right
with a radius of 1,465.50 and a delta angle of 4° 17’ 59” a distance of 109.97
feet to a point;


 


Thence turning and running along a curve to the right
with a radius of 1,465.50 and a delta angle of 16° 34’ 02” a distance of 423.76
feet;


 


Thence turning and running North 31° 54’ 38” East a
distance of 120.00 feet to a point at the westerly sideline of Jeffery Street,
the last three courses being along the westerly sideline of Goffs Falls Road;


 


Thence turning and running North 14° 45’ 43” East a
distance of 196.87 feet to a point;


 
















 


Thence turning and running North 21° 06’ 38” East a
distance of 263.80 feet to the point of beginning, the last two courses being
along Jeffery Street.


 


This conveyance is subject to the following


 


1.                                    Flowage rights described in
deed from Jonathan A. Lane to Devonshire Mills dated January 12, 1887, and
recorded at the Hillsborough County Registry of Deeds, Book 487, Page 54.


 


2.                                    Water pipe reservation set
forth in Warranty Deed of Public Service Company of New Hampshire to the State
of New Hampshire dated April 30, 1943, and recorded at the Hillsborough
County Registry of Deeds, Book 1049, Page 82


 


3.                                    Possible rights in favor of
the City of Manchester resulting from (i) the recordation of a plan
entitled “Additional Right of Way Acquisition, Goffs Falls Road Realignment,
dedicated by Home Insurance Company” dated May 1977, and recorded at the
Hillsborough County Registry of Deeds as Plan No. 10941 which plan shows a
proposed easement area at the southerly tip of the Tract 2; and (ii) the
dedication of such area to the City of Manchester on November 4, 1977.


 


4.                                    Easement from The Home
Insurance Company to New England Telephone and Telegraph Company dated April 6,
1978, and recorded at the Hillsborough County Registry of Deeds, Book 2601, Page 232.


 


5.                                    Development Agreement
between the City of Manchester and New Hampshire-Vermont Health Service d/b/a
Blue Cross and Blue Shield of New Hampshire dated August 11, 1992,
recorded at the Hillsborough County Registry of Deeds at Book 5361, Page 236


 


6.                                    The following matters
disclosed to the grantees:


 


(a)                               Guy wire to pole PSCO #6
encroaches onto Parcel 2;


 


(b                                   Overhead electric line
crosses over Parcel 2;


 


(c)                               Overhead electric, telephone
and cable lines cross over Parcel 2;


 

















 


(d)                              Utility pole, guy wires and
overhead cable lines encroach onto Parcel 2;


 


(e)                               Utility pole guy wires,
support pole and overhead cable lines encroach onto Parcel 2;


 


(f)                                  Utility pole, guy wire,
overhead and underground cable lines encroach onto Parcel 2;


 


(g)                               Support pole encroaches onto
Parcel 1;


 


(h)                               Guy wire to Pole 31395
encroaches onto Parcel 2;


 


(i)                                   Utility pole PSCO #39A and
overhead electric lines encroach onto Parcel 2;


 


(j)                                  Wood dock encroaches into
the channel;


 


(k)                              24 inch drainage pipe with
headwall drains into the channel; and


 


(1)                              Fence encroaches upon road.


 


7.                                    Confirmatory Water Level
Agreement dated August 11, 19992 between New Hampshire-Vermont Health
Service d/b/a Blue Cross and Blue Shield of New Hampshire and the City of
Manchester, recorded at Hillsborough County Registry of Deeds at Book 5361, Page 241.


 


Meaning and intending to describe and convey the same
premises conveyed to New Hampshire-Vermont Health Service d/b/a Blue Cross and
Blue Shield of New Hampshire by the Warranty Deed of The Home Insurance Company
dated August 13, 1992, and recorded at the Hillsborough County Registry of
Deeds, Book 5361, Page 231.


 


EXECUTED under seal this _____ day of May, 1999.


 


	
   

  	
  NEW HAMPSHIRE-VERMONT HEALTH

  
	
   

  	
  SERVICE D/B/A BLUE CROSS AND

  
	
   

  	
  BLUE SHIELD OF NEW HAMPSHIRE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Duly Authorized

  



 

















 


STATE OF NEW HAMPSHIRE

COUNTY OF MERRIMACK


 


The foregoing instrument was acknowledged before me this
_______ day of May, 1999, by David A. Jensen, the President and Chief Executive
Officer of New Hampshire-Vermont Health Service d/b/a Blue Cross and Blue
Shield of New Hampshire, a New Hampshire corporation, on behalf of said
corporation.


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
  My Commission Expires:

  



 

















 


EXHIBIT A


 


(See attached document)