Exhibit
10.5


 


AMENDED AND RESTATED GUARANTY AGREEMENT


(LEASE NO. 1)


 


THIS
AMENDED AND RESTATED GUARANTY AGREEMENT (this “Guaranty”) is entered into as of August
4, 2009 by FIVE STAR QUALITY CARE, INC.,
a Maryland corporation  (“Guarantor”),
for the benefit of SNH CHS PROPERTIES TRUST, a
Maryland real estate investment trust, SPTIHS
PROPERTIES TRUST, a Maryland real estate investment trust, SPTMNR PROPERTIES TRUST, a Maryland real
estate investment trust, SNH/LTA PROPERTIES
TRUST, a Maryland real estate investment trust, SNH/LTA PROPERTIES GA LLC, a Maryland
limited liability company,  and SNH SOMERFORD PROPERTIES TRUST, a Maryland
real estate investment trust, collectively as landlord (“Landlord”).


 


W  I  T  N  E
S  S  E  T  H :


 


WHEREAS, Guarantor and
Landlord and certain affiliates of Landlord are parties to those certain Amended and Restated Guaranty
Agreements, dated as of June 30, 2008 (collectively, the “Original
Guarantees”); and


 


WHEREAS, the Original Guarantees guarantee all of
the payment and performance obligations of the tenants under those certain
Amended and Restated Lease Agreements, dated as of June 30, 2008, as
further described in the Original Guarantees (collectively, the “Original
Leases”); and


 


WHEREAS, the landlords
and tenants under the Original Leases are conveying their interests in certain
of the properties demised thereunder and, in connection therewith, they and
certain of their affiliates are amending and restating the Original Leases into
separate leases (collectively, the “Restated Leases”); and


 


WHEREAS, in connection with the execution and
delivery of the Restated Leases, Guarantor, Landlord and
certain affiliates of Landlord have agreed to amend and restate the Original
Guarantees into separate guarantees that will each guaranty all of the payment
and performance obligations of each tenant under a Restated Lease; and


 


WHEREAS, this Guaranty
amends and restates the Original Guarantees with respect to that certain
Amended and Restated Lease Agreement, dated as of the date hereof, between Landlord
and Five Star Quality
Care Trust, a Maryland business trust, as tenant (as the same may be amended,
modified or supplemented from time to time, the “Amended Lease No. 1”);


 

















 


NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the mutual receipt and legal sufficiency
of which are hereby acknowledged, Guarantor hereby agrees as follows:


 


1.             Certain Terms.  Capitalized terms used and not otherwise
defined in this Guaranty shall have the meanings ascribed to such terms in the
Amended Lease No. 1.  The Amended
Lease No. 1 and the Incidental Documents are hereinafter collectively
referred to as the “Amended Lease No. 1 Documents”.


 


2.             Guaranteed Obligations.  For purposes of this Guaranty the term “Guaranteed
Obligations” shall mean the payment and performance of each and every
obligation of Tenant to Landlord under the Amended Lease No. 1 Documents
or relating thereto, whether now existing or hereafter arising, and including,
without limitation, the payment of the full amount of the Rent payable under
the Amended Lease No. 1.


 


3.             Representations and Covenants.  Guarantor represents, warrants, covenants,
and agrees that:


 


3.1  Incorporation of
Representations and Warranties. 
The representations and warranties of Tenant and its Affiliated
Persons set forth in the Amended Lease No. 1 Documents are true and
correct on and as of the date hereof in all material respects.


 


3.2  Performance of Covenants
and Agreements.  Guarantor
hereby agrees to take all lawful action in its power to cause Tenant duly and
punctually to perform all of the covenants and agreements set forth in the
Amended Lease No. 1 Documents.


 


3.3  Validity of Agreement.  Guarantor has duly and validly executed and
delivered this Guaranty; this Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except as the enforceability thereof may be subject to bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ rights generally and subject to general
equitable principles, regardless of whether enforceability is considered in a
proceeding at law or in equity; and the execution, delivery and performance of
this Guaranty have been duly authorized by all requisite action of Guarantor
and such execution, delivery and performance by Guarantor will not 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 of the property or assets 


 


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of
Guarantor pursuant to the terms of, any indenture, mortgage, deed of trust,
note, other evidence of indebtedness, agreement or other instrument to which it
may be a party or by which it or any of its property or assets may be bound, or
violate any provision of law, or any applicable order, writ, injunction,
judgment or decree of any court or any order or other public regulation of any
governmental commission, bureau or administrative agency.


 


3.4  Payment of Expenses.  Guarantor agrees, as principal obligor and
not as guarantor only, to pay to Landlord forthwith, upon demand, in
immediately available federal funds, all costs and expenses (including
reasonable attorneys’ fees and disbursements) incurred or expended by Landlord
in connection with the enforcement of this Guaranty, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the Overdue Rate. 
Guarantor’s covenants and agreements set forth in this Section 3.4
shall survive the termination of this Guaranty.


 


3.5  Notices.  Guarantor shall promptly give notice to
Landlord of any event known to it which might reasonably result in a material
adverse change in its financial condition.


 


3.6  Reports.  Guarantor shall promptly provide to Landlord
each of the financial reports, certificates and other documents required of it
under the Amended Lease No. 1 Documents.


 


3.7  Books and Records.  Guarantor shall at all times keep proper
books of record and account in which full, true and correct entries shall be
made of its transactions in accordance with generally accepted accounting
principles and shall set aside on its books from its earnings for each fiscal
year all such proper reserves, including reserves for depreciation, depletion,
obsolescence and amortization of its properties during such fiscal year, as
shall be required in accordance with generally accepted accounting principles,
consistently applied, in connection with its business.  Guarantor shall permit access by Landlord and
its agents to the books and records maintained by Guarantor during normal
business hours and upon reasonable notice. 
Any proprietary information obtained by Landlord with respect to
Guarantor pursuant to the provisions of this Guaranty shall be treated as
confidential, except that such information may be disclosed or used, subject to
appropriate confidentiality safeguards, pursuant to any court order or in any
litigation between the parties and except further that Landlord may disclose
such information to its prospective lenders, provided 


 


3

















 


that
Landlord shall direct such lenders to maintain such information as
confidential.


 


3.8  Taxes, Etc.  Guarantor shall pay and discharge promptly as
they become due and payable all taxes, assessments and other governmental
charges or levies imposed upon Guarantor or the income of Guarantor or upon any
of the property, real, personal or mixed, of Guarantor, or upon any part
thereof, as well as all claims of any kind (including claims for labor,
materials and supplies) which, if unpaid, might by law become a lien or charge
upon any property and result in a material adverse change in the financial
condition of Guarantor; provided, however, that Guarantor shall
not be required to pay any such tax, assessment, charge, levy or claim if the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings or other appropriate actions promptly
initiated and diligently conducted and if Guarantor shall have set aside on its
books such reserves of Guarantor, if any, with respect thereto as are required
by generally accepted accounting principles.


 


3.9  Legal Existence of
Guarantor.  Guarantor
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence.


 


3.10  Compliance.  Guarantor shall use reasonable business
efforts to comply in all material respects with all applicable statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental authorities in respect of the conduct of its business and the
ownership of its property (including, without limitation, applicable statutes,
rules, regulations, orders and restrictions relating to environmental, safety
and other similar standards or controls).


 


3.11  Insurance.  Guarantor shall maintain, with financially
sound and reputable insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
owners of established reputation engaged in the same or similar businesses and
similarly situated, in such amounts and by such methods as shall be customary
for such owners and deemed adequate by Guarantor.


 


3.12  No Change in Control.  Guarantor shall not permit the occurrence of
any direct or indirect Change in Control of Tenant or Guarantor.


 


4.             Guarantee.  Guarantor hereby unconditionally guarantees
that the Guaranteed Obligations which are monetary obligations shall be paid in
full when due and payable, whether 


 


4

















 


upon demand, at the stated
or accelerated maturity thereof pursuant to any Amended Lease No. 1
Document, or otherwise, and that the Guaranteed Obligations which are
performance obligations shall be fully performed at the times and in the manner
such performance is required by the Amended Lease No. 1 Documents.  With respect to the Guaranteed Obligations
which are monetary obligations, this guarantee is a guarantee of payment and
not of collectability and is absolute and in no way conditional or contingent.  In case any part of the Guaranteed
Obligations shall not have been paid when due and payable or performed at the
time performance is required, Guarantor shall, in the case of monetary
obligations, within five (5) Business Days after receipt of notice from
Landlord, pay or cause to be paid to Landlord the amount thereof as is then due
and payable and unpaid (including interest and other charges, if any, due
thereon through the date of payment in accordance with the applicable
provisions of the Amended Lease No. 1 Documents) or, in the case of
non-monetary obligations, perform or cause to be performed such obligations in
accordance with the Amended Lease No. 1 Documents.


 


5.             Set-Off.  Guarantor hereby authorizes Landlord, at any
time and without notice, to set off the whole or any portion or portions of any
or all sums credited by or due from Landlord to it against amounts payable
under this Guaranty.  Landlord shall
promptly notify Guarantor of any such set-off made by Landlord and the
application made by Landlord of the proceeds thereof.


 


6.             Unenforceability
of Guaranteed Obligations, Etc.  If Tenant is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations (other than because
the same have been previously discharged in accordance with the terms of the
Amended Lease No. 1 Documents), or if any other moneys included in the
Guaranteed Obligations have become unrecoverable from Tenant by operation of
law or for any other reason, including, without limitation, the invalidity or
irregularity in whole or in part of any Guaranteed Obligation or of any
Transaction Document or any limitation on the liability of Tenant thereunder
not contemplated by the Amended Lease No. 1 Documents or any limitation on
the method or terms of payment thereunder which may now or hereafter be caused
or imposed in any manner whatsoever, the guarantees contained in this Guaranty
shall nevertheless remain in full force and effect and shall be binding upon
Guarantor to the same extent as if Guarantor at all times had been the
principal debtor on all such Guaranteed Obligations.


 


7.             Additional
Guarantees.  This Guaranty shall be in addition to any
other guarantee or other security for the 


 


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Guaranteed Obligations and
it shall not be prejudiced or rendered unenforceable by the invalidity of any
such other guarantee or security or by any waiver, amendment, release or
modification thereof.


 


8.             Consents
and Waivers, Etc. 
Guarantor hereby acknowledges receipt of correct and complete copies of
each of the Amended Lease No. 1 Documents, and consents to all of the
terms and provisions thereof, as the same may be from time to time hereafter
amended or changed in accordance with the terms and conditions thereof, and,
except as otherwise provided herein, to the maximum extent permitted by
applicable law, waives (a) presentment, demand for payment, and protest of
nonpayment, of any principal of or interest on any of the Guaranteed
Obligations, (b) notice of acceptance of this Guaranty and of diligence,
presentment, demand and protest, (c) notice of any default hereunder and
any default, breach or nonperformance or Event of Default under any of the
Guaranteed Obligations or the Amended Lease No. 1 Documents, (d) notice
of the terms, time and place of any private or public sale of any collateral
held as security for the Guaranteed Obligations, (e) demand for
performance or observance of, and any enforcement of any provision of, or any
pursuit or exhaustion of rights or remedies against Tenant or any other
guarantor of the Guaranteed Obligations, under or pursuant to the Amended Lease
No. 1 Documents, or any agreement directly or indirectly relating thereto
and any requirements of diligence or promptness on the part of the holders of
the Guaranteed Obligations in connection therewith, and (f) to the extent
Guarantor lawfully may do so, any and all demands and notices of every kind and
description with respect to the foregoing or which may be required to be given
by any statute or rule of law and any defense of any kind which it may now
or hereafter have with respect to this Guaranty, or any of the Amended Lease No. 1
Documents or the Guaranteed Obligations (other than that the same have been
discharged in accordance with the Amended Lease No. 1 Documents).


 


9.             No
Impairment, Etc.  The obligations,
covenants, agreements and duties of Guarantor under this Guaranty shall not be
affected or impaired by any assignment or transfer in whole or in part of any
of the Guaranteed Obligations without notice to Guarantor, or any waiver by
Landlord or any holder of any of the Guaranteed Obligations or by the holders
of all of the Guaranteed Obligations of the performance or observance by Tenant
or any other guarantor of any of the agreements, covenants, terms or conditions
contained in the Guaranteed Obligations or the Amended Lease No. 1
Documents or any indulgence in or the extension of the time for payment by
Tenant 


 


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or any other guarantor of
any amounts payable under or in connection with the Guaranteed Obligations or
the Amended Lease No. 1 Documents or any other instrument or agreement
relating to the Guaranteed Obligations or of the time for performance by Tenant
or any other guarantor of any other obligations under or arising out of any of
the foregoing or the extension or renewal thereof (except that with respect to
any extension of time for payment or performance of any of the Guaranteed
Obligations granted by Landlord or any other holder of such Guaranteed
Obligations to Tenant, Guarantor’s obligations to pay or perform such
Guaranteed Obligation shall be subject to the same extension of time for
performance), or the modification or amendment (whether material or otherwise)
of any duty, agreement or obligation of Tenant or any other guarantor set forth
in any of the foregoing, or the voluntary or involuntary sale or other
disposition of all or substantially all of the assets of Tenant or any other
guarantor or insolvency, bankruptcy, or other similar proceedings affecting
Tenant or any other guarantor or any assets of Tenant or any such other
guarantor, or the release or discharge of Tenant or any such other guarantor
from the performance or observance of any agreement, covenant, term or
condition contained in any of the foregoing without the consent of the holders
of the Guaranteed Obligations by operation of law, or any other cause, whether
similar or dissimilar to the foregoing.


 


10.           Reimbursement,
Subrogation, Etc. 
Guarantor hereby covenants and agrees that it will not enforce or
otherwise exercise any rights of reimbursement, subrogation, contribution or
other similar rights against Tenant (or any other person against whom Landlord
may proceed) with respect to the Guaranteed Obligations prior to the payment in
full of all amounts owing with respect to the Amended Lease No. 1
Documents, and until all indebtedness of Tenant to Landlord shall have been
paid in full, Guarantor shall not have any right of subrogation, and Guarantor
waives any defense it may have based upon any election of remedies by Landlord
which destroys its subrogation rights or its rights to proceed against Tenant
for reimbursement, including, without limitation, any loss of rights Guarantor
may suffer by reason of any rights, powers or remedies of Tenant in connection
with any anti-deficiency laws or any other laws limiting, qualifying or
discharging the indebtedness to Landlord. 
Until all obligations of Tenant pursuant to the Amended Lease No. 1
Documents shall have been paid and satisfied in full, Guarantor further waives
any right to enforce any remedy which Landlord now has or may in the future
have against Tenant, any other guarantor or any other person and any benefit
of, or any right to participate in, any security whatsoever now or in the
future held by Landlord.


 


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11.                                 Defeasance.  This Guaranty shall
terminate at such time as the Guaranteed Obligations have been paid and
performed in full and all other obligations of Guarantor to Landlord under this
Guaranty have been satisfied in full; provided, however, if at
any time, all or any part of any payment applied on account of the Guaranteed
Obligations is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
Tenant), this Guaranty, to the extent such payment is or must be rescinded or
returned, shall be deemed to have continued in existence notwithstanding any
such termination.


 


12.                                 Notices.


 


(a)                                  Any and all
notices, demands, consents, approvals, offers, elections and other communications
required or permitted under this Guaranty shall be deemed adequately given if
in writing and the same shall be delivered either in hand, by telecopier with
written acknowledgment of 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 Guaranty 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 Guaranty 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,


 


if
to Landlord to:


 


c/o
Senior Housing Properties Trust


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. David J. Hegarty


[Telecopier No. (617) 796-8349]


 


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if
to Guarantor to:


 


Five Star Quality Care, Inc.


400 Centre Street


Newton, Massachusetts  02458


Attn: 
Mr. Bruce J. Mackey Jr.


[Telecopier No. (617) 796-8385]


 


(d)                                 By notice given
as herein provided, the parties hereto and their respective successors and
assigns shall have the right from time to time and at any time during the term
of this Guaranty 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.


 


13.                                 Successors
and Assigns.  Whenever in this Guaranty any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party, including without limitation the holders, from time
to time, of the Guaranteed Obligations; and all representations, warranties,
covenants and agreements by or on behalf of Guarantor which are contained in
this Guaranty shall inure to the benefit of Landlord’s successors and assigns,
including without limitation said holders, whether so expressed or not.


 


14.                                 Applicable
Law.  Except as to
matters regarding the internal affairs of Landlord and issues of or limitations
on any personal liability of the shareholders and trustees of Landlord for
obligations of Landlord, as to which the laws of the state of Landlord’s
organization shall govern, this Guaranty shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (a) where
any such instrument is executed or delivered; or (b) where any payment or
other performance required by any such instrument is made or required to be
made; or (c) where any breach of any provision of any such instrument
occurs, or any cause of action otherwise accrues; or (d) where any action
or other proceeding is instituted or pending; or (e) the nationality,
citizenship, domicile, principal place of business, or jurisdiction of
organization or domestication of any party; or (f) whether the laws of the
forum jurisdiction otherwise would apply the laws of a jurisdiction other than
The Commonwealth of Massachusetts; or (g) any combination of the
foregoing.


 


15.                                 Disputes.  Any
disputes, claims or controversies between or among the parties hereto arising
out of or relating 


 


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to this Guaranty or the transactions contemplated hereby, including
disputes, claims or controversies relating to the meaning, interpretation,
effect, validity, performance or enforcement of this Guaranty (all of which are
referred to as “Disputes”) or relating in any way to such a Dispute or
Disputes, shall on the demand of any party to such Dispute be resolved through
binding and final arbitration in accordance with the Commercial Arbitration Rules (the
“Rules”) of the American Arbitration Association (“AAA”) then in
effect, except as modified herein.  For the
avoidance of doubt, a Dispute shall include a Dispute made derivatively on
behalf of one party against another party.


 


There shall be three
arbitrators.  If there are (a) only
two parties to the Dispute, each party shall select one arbitrator within fifteen
days after receipt by respondent of a copy of the demand for arbitration and (b) more
than two parties to the Dispute, all claimants, on the one hand, and all
respondents, on the other hand, shall each select, by the vote of a majority of
the claimants or the respondents, as the case may be, one arbitrator.  The two party-nominated arbitrators shall
jointly nominate the third and presiding arbitrator within fifteen days of the
nomination of the second arbitrator.  If
any arbitrator has not been nominated within the time limit specified herein,
then the AAA shall provide a list of proposed arbitrators in accordance with
the Rules, and the arbitrator shall be appointed by the AAA in accordance with
a listing, striking and ranking procedure, with each party having a limited
number of strikes, excluding strikes for cause. 
For the avoidance of doubt, the arbitrators appointed by the parties to
such Dispute may be affiliates or interested persons of such parties but the
third arbitrator elected by the party arbitrators or by the AAA shall be
unaffiliated with either party.


 


The place of arbitration
shall be Boston, Massachusetts unless otherwise agreed by the parties.


 


There shall be only limited
documentary discovery of documents directly related to the issues in dispute,
as may be ordered by the arbitrators.


 


In rendering an award or
decision (the “Arbitration Award”), the arbitrators shall be required to
follow the laws of the Commonwealth of Massachusetts.  Any arbitration proceedings or Arbitration
Award rendered hereunder and the validity, effect and interpretation of this
arbitration agreement shall be governed by the Federal Arbitration Act, 9
U.S.C. §1 et seq.  The Arbitration Award
shall be in writing and may, but shall not 


 


10

















 


be required to, briefly state the findings of
fact and conclusions of law on which it is based.


 


Except to the extent
expressly provided by this Guaranty or as otherwise agreed between the parties,
each party involved in a Dispute shall bear its own costs and expenses
(including attorneys’ fees), and the arbitrators shall not render an award that
would include shifting of any such costs or expenses (including attorneys’
fees) or, in a derivative case or class action by a holder of any party, award
any portion of such party’s award to the claimant or the claimant’s
attorneys.  Each party (or, if there are
more than two parties to the Dispute, all claimants, on the one hand, and all
respondents, on the other hand, respectively) shall bear the costs and expenses
of its (or their) selected arbitrator and the parties (or, if there are more
than two parties to the Dispute, all claimants, on the one hand, and all
respondents, on the other hand) shall equally bear the costs and expenses of the
third appointed arbitrator.


 


The Arbitration Award shall
be final and binding upon the parties thereto and shall be the sole and
exclusive remedy between such parties relating to the Dispute, including any
claims, counterclaims, issues or accounting presented to the arbitrators.  Judgment upon the Arbitration Award may be
entered in any court having jurisdiction. 
To the fullest extent permitted by law, no application or appeal to any
court of competent jurisdiction may be made in connection with any question of
law arising in the course of arbitration or with respect to any award made
except for actions relating to enforcement of this agreement to arbitrate or
any arbitral award issued hereunder and except for actions seeking interim or
other provisional relief in aid of arbitration proceedings in any court of
competent jurisdiction.


 


Any monetary award shall be made and payable in U.S.
dollars free of any tax, deduction or offset. 
The party against which the Arbitration Award assesses a monetary
obligation shall pay that obligation on or before the thirtieth day following
the date of the Arbitration Award or such other date as the Arbitration Award
may provide.


 


16.                                 Modification
of Agreement.  No modification or waiver of any provision of
this Guaranty, nor any consent to any departure by Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by
Landlord, and such modification, waiver or consent shall be effective only in
the specific instances and for the purpose for which given.  No notice to or demand on Guarantor in any
case shall entitle Guarantor to any other or further notice or demand 


 


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in the same, similar or
other circumstances.  This Guaranty may
not be amended except by an instrument in writing executed by or on behalf of
the party against whom enforcement of such amendment is sought.


 


17.                                 Waiver
of Rights by Landlord.  Neither any failure nor any delay on Landlord’s
part in exercising any right, power or privilege under this Guaranty shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right,
power or privilege.


 


18.                                 Severability.  In case any one or more of the provisions
contained in this Guaranty should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby, but this
Guaranty shall be reformed and construed and enforced to the maximum extent
permitted by applicable law.


 


19.                                 Entire
Contract.  This Guaranty constitutes the entire
agreement between 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.


 


20.                                 Headings;
Counterparts.  Headings in this Guaranty are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.  This Guaranty may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument, and in pleading or proving any provision of
this Guaranty, it shall not be necessary to produce more than one of such
counterparts.


 


21.                                 Remedies
Cumulative.  No remedy herein conferred upon Landlord is
intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise.


 


22.                                 NON-LIABILITY OF
TRUSTEES.  THE DECLARATIONS OF TRUST ESTABLISHING
CERTAIN ENTITIES COMPRISING THE LANDLORD, COPIES OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (COLLECTIVELY, THE “DECLARATIONS”), ARE DULY FILED
WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDE THAT THE NAMES OF SUCH ENTITIES REFER TO THE TRUSTEES UNDER SUCH
DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND
THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH ENTITIES SHALL
BE HELD TO ANY PERSONAL 


 


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LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION
OF, OR CLAIM AGAINST, SUCH ENTITIES.  ALL
PERSONS DEALING WITH SUCH ENTITIES, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS
OF SUCH ENTITIES FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.


 


23.                                 Original
Guarantees.  Guarantor and Landlord acknowledge and agree
that this Guaranty amends and restates the Original Guarantees in their
entirety with respect to the Guaranteed Obligations and that this Guaranty
shall govern the rights and obligations of Guarantor with respect to the
Guaranteed Obligations from and after the date of this Guaranty.  Notwithstanding the foregoing, the Original
Guarantees shall continue to govern the rights and obligations of Guarantor
with respect to the “Guaranteed Obligations” (as defined in the Original
Guarantees) prior to the date of this Guaranty and nothing contained in this
Guaranty shall operate to release Guarantor from any such rights or
obligations.


 


[Remainder of page intentionally left blank.]


 


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WITNESS the execution hereof under seal as of the date
above first written.


 


	
   

  	
  FIVE
  STAR QUALITY CARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  President

  



 


 


LANDLORD
HEREBY CONSENTS TO THE EXECUTION AND DELIVERY OF THIS GUARANTY BY GUARANTOR AND
FURTHER ACKNOWLEDGES AND AGREES TO THE PROVISIONS OF SECTION 23 OF THIS
GUARANTY.


 


 


	
   

  	
  SNH CHS PROPERTIES TRUST,
  SPTIHS 

  PROPERTIES TRUST, SPTMNR 

  PROPERTIES TRUST, SNH/LTA 

  PROPERTIES TRUST, SNH/LTA 

  PROPERTIES GA LLC, and SNH 

  SOMERFORD PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Hegarty

  
	
   

  	
   

  	
  David J. Hegarty

  
	
   

  	
   

  	
  President of each of
  the foregoing entities

  



 


[SIGNATURE PAGE TO
AMENDED AND RESTATED GUARANTY AGREEMENT (LEASE NO. 1)]