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EXHIBIT 99.3
EXECUTION COPY
DS2-304489.3
GUARANTY
TO: MEDITRUST ACQUISITION CORPORATION III
1. Guaranty of Payment and Performance of Obligations. For value
received and hereby acknowledged and as an inducement to MEDITRUST ACQUISITION
CORPORATION III, a Delaware corporation, having its principal office at 197
First Avenue, Needham Heights, Massachusetts 02194 (hereinafter referred to as
the "Lessor") to: (A) enter into that certain lease transaction with ALS
LEASING, INC., a Delaware corporation, having its principal place of business at
450 North Sunnyslope Road, Suite 300, Brookfield, Wisconsin 53005 (hereinafter
referred to as the "Lessee"), pursuant to various Facility Lease Agreements by
and between the Lessor and the Lessee (hereinafter referred to, collectively, as
the "Leases"), relating to the various facilities listed in Exhibits A, B and C
to the Agreement Regarding Related Lease Transactions ("Agreement Regarding
Related Lease Transactions") by and between Lessor and Lessee of even date
herewith (hereinafter referred to, collectively, as the "Facilities") as each
such Exhibit may be amended or modified from time to time in order to reflect
the addition of new facilities or the removal of one or more facilities, and (B)
enter into or accept the other Lease Documents (as defined in the Leases) and
make future loans, advances and extensions of credit to, for the account of or
on behalf of the Lessee, the undersigned, ALTERNATIVE LIVING SERVICES, INC., a
Delaware corporation, having its principal place of business at 450 North
Sunnyslope Road, Suite 300, Brookfield, Wisconsin 53005 (the "Guarantor"), being
the sole shareholder of the Lessee and, as such, deriving a substantial benefit
from the consummation of the transaction evidenced by the Lease Documents,
hereby unconditionally guarantees to the Lessor the full payment and performance
of the Lease Obligations (as hereinafter defined) and the full payment and
performance of all obligations under any and all Subleases (as defined in the
Leases) irrespective of whether or not the Lessee is in default of any Lease
Obligations or whether or not any of the Leases are terminated. For the purposes
of this Guaranty, the term "Lease Obligations" shall mean the Lease Obligations
as defined in the Leases and all payment and performance obligations due and
owing under any and all Subleases.
This Guaranty is an absolute, unconditional and continuing guaranty of
the full and punctual payment and performance of the Lease Obligations and not
merely of their collectibility and is in no way conditioned upon any requirement
that the Lessor first collect or attempt to collect the Lease Obligations or any
portion thereof from the Lessee or from any endorser, surety or other guarantor
of any of the same or resort to any security or other means of obtaining payment
of any of the Lease Obligations that the Lessor, from any Sublessee now has or
may acquire after the date hereof, or upon any other contingency whatsoever.
Upon any Lease Default (as defined in the Leases), the Lease Obligations and all
liabilities and obligations of the Guarantor to the Lessor, hereunder or
otherwise, shall, at the option of the Lessor, become immediately due and
payable to the Lessor
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without further demand or notice of any nature, all of which are expressly
waived by the Guarantor. Payments by the Guarantor hereunder may be required by
the Lessor on any number of occasions. This Guaranty shall continue in full
force and effect until the complete payment and performance of all of the Lease
Obligations.
All payments hereunder received by the Lessor shall be applied by the
Lessor, without any marshalling of assets, towards the payment and/or
performance of the Lease Obligations and any other indebtedness of the Guarantor
hereunder in such order as the Lessor, in its sole and absolute discretion, may
determine.
2. DEFINED TERMS. Capitalized terms used herein and not otherwise
specifically defined herein shall have the same meanings ascribed to such terms
in the Leases.
3. THE GUARANTOR'S FURTHER AGREEMENTS TO PAY. The Guarantor further
agrees, as the principal obligor and not as a guarantor, to pay to the Lessor
forthwith upon demand, in funds immediately available to the Lessor, all costs
and expenses, including without limitation, attorneys' fees and expenses and
court costs, reasonably incurred or expended by the Lessor in connection with
the collection or enforcement of the Lease Obligations and the enforcement of
all of the other obligations hereunder. Any amounts owed to the Lessor under
this Section 3 shall be a demand obligation and, if not paid within ten (10)
days after demand, shall thereafter, to the extent then permitted by law, bear
interest at the Overdue Rate until the date of payment. The provisions of this
Section 3 shall survive the expiration or earlier termination of the Leases.
4. LIABILITY OF THE GUARANTOR. This Guaranty is unlimited and the
Guarantor shall be jointly and severally liable with every endorser, surety or
other guarantor of any or all of the Lease Obligations and the continuation of
this Guaranty shall not be affected by the termination, discontinuance, release
or modification of any agreement from (A) any such endorser, surety or guarantor
and/or (B) any other endorser, surety or guarantor of any of the other
Obligations. Nothing contained herein or otherwise shall require the Lessor to
make demand upon or join the Lessee, any Sublessee or any such endorser, surety
or guarantor or other party in any suit brought upon this Guaranty; and the
Guarantor hereby waives any right to require marshalling or exhaustion of any
remedy against any collateral, other property, or any other Person primarily or
secondarily liable.
5. THE LESSOR'S FREEDOM TO DEAL WITH THE LESSEE AND OTHER PARTIES. The
Lessor shall be at liberty, without giving notice to or obtaining the assent of
the Guarantor and without relieving the Guarantor of any liability hereunder, to
deal with the Lessee, any Sublessee and with each other Person who now is or
after the date hereof becomes liable in any manner for any of the Obligations in
such manner as the Lessor, in its sole and absolute discretion, deems fit. The
Lessor and the other Meditrust Entities have full authority (in their sole and
absolute discretion) to do any or all of the following things, none of which
shall discharge or affect the Guarantor's liability hereunder:
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(a) extend credit, make loans and afford other financial accommodations
to the Lessee, any Sublessee and/or any of the Related Parties at such times, in
such amounts and on such terms as the Lessor may approve;
(b) modify, amend, vary the terms and grant extensions or renewals of
any present or future Obligations or any instrument relating to or securing the
same, and, without limitation, this Guaranty shall survive the expiration or
earlier termination of the Leases;
(c) grant time, waivers and other indulgences in respect of any of the
Obligations;
(d) vary, exchange, release or discharge, wholly or partially, or
delay, fail to, or abstain from perfecting and enforcing any security or
guaranty or other means of obtaining payment of any of the Obligations which the
Lessor or any of the other Meditrust Entities now has or acquires after the date
hereof;
(e) take or omit to take any of the actions referred to in any
instrument evidencing, securing or relating to any of the Obligations or any
actions under this Guaranty, except nothing herein shall relieve the Lessor of
any obligation to give notice and/or a period to cure (if any) to the Lessee as
provided in the Leases;
(f) fail, omit or delay to enforce, assert or exercise any right, power
or remedy conferred on the Lessor or any of the other Meditrust Entities in this
Guaranty or in any other instrument evidencing, securing or relating to any of
the Obligations or take or refrain from taking any other action, except nothing
herein shall relieve the Lessor of any obligation to give notice and/or a period
to cure (if any) to the Lessee as provided in the Leases;
(g) accept partial payments from the Lessee, any other member of the
Leasing Group, any of the Related Parties or any other Person;
(h) release or discharge, wholly or partially, the Lessee, any other
member of the Leasing Group, any of the Related Parties, any Sublessee and/or
any other Person now or hereafter primarily or secondarily liable for the
Obligations (or any portion thereof) or accept additional collateral for the
payment of any Obligations;
(i) compromise or make any settlement or other arrangement with the
Lessee, any other member of the Leasing Group, any of the Related Parties, any
Sublessee or any other Person referred to in clause (h) above; and
(j) consent to and participate in the proceeds of any assignment,
trust or mortgage for the benefit of creditors.
6. UNENFORCEABILITY OF OBLIGATIONS; INVALIDITY OF SECURITY OR OTHER
GUARANTIES. The obligations of the Guarantor hereunder shall not be affected by
any change in the beneficial
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ownership of the Lessee, any other member of the Leasing Group, any of the
Related Parties or any Sublessee, by reason of any disability of the Lessee, any
other member of the Leasing Group, any Related Party, any Sublessee or by any
other circumstance (other than the complete payment and performance of the Lease
Obligations) which might constitute a defense available to, or a discharge of,
the Lessee, any other member of the Leasing Group, any of the Related Parties or
any Sublessee in respect of any of the Obligations. If for any reason now or
hereafter the Lessee, any other member of the Leasing Group, any of the Related
Parties or any Sublessee has no legal existence or is under no legal obligation
to discharge any of the Obligations undertaken or purported to be undertaken by
it or on its behalf, or if any of the moneys included in the Obligations have
become irrecoverable from the Lessee, any other member of the Leasing Group, any
Related Party or any Sublessee by operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor and the Guarantor shall
remain unconditionally liable for the complete payment and performance of the
Lease Obligations. This Guaranty shall be in addition to any other guaranty or
other security for the Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such other guaranty or security. This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if, at any time, any payment of the Obligations is rescinded or must otherwise
be returned by the Lessor or any of the other Meditrust Entities, upon the
insolvency, bankruptcy or reorganization of the Lessee, any other member of the
Leasing Group, any of the Related Parties or any Sublessee or otherwise, all as
though such payment had not been made. The Guarantor covenants to cause the
Lessee to maintain and preserve the enforceability of any instruments now or
hereafter executed in favor of the Lessor, and to take no action of any kind
which might be the basis for a claim that the Guarantor has any defense
hereunder other than the complete payment and performance of the Lease
Obligations.
It shall not be necessary for the Lessor to inquire into the power of
the Lessee or any Sublessee or anyone acting or purporting to act on any such
party's behalf, and any Lease Obligation made or created in reliance upon the
professed exercise of such powers shall be guarantied hereunder. The Guarantor
represents that the Lessee is the bona fide tenant of the Leased Property, that
any Sublessee is or shall be a bona fide subtenant of the Leased Property and
that neither the Lessee nor any Sublessee has been formed or availed of to evade
or circumvent the applicable usury laws of any state or states concerned
therewith, and the Guarantor hereby indemnifies the Lessor and agrees to save it
harmless against any damages or expenses suffered by the Lessor should this
representation or any other representation contained herein prove untrue in any
material respect. The aforesaid indemnification agreement shall include, without
limitation, attorneys' fees and expenses and court costs reasonably incurred by
the Lessor in connection with the enforcement of said indemnification.
The indemnity provisions of this Section 6 shall survive the complete
payment and performance of the Obligations and the expiration or earlier
termination of the Leases.
7. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. In order to induce
the Lessor to enter into or accept the Leases and the other Lease Documents, the
Guarantor hereby warrants and represents to, and covenants and agrees with, the
Lessor that:
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7.1. FORMATION AND AUTHORITY OF THE GUARANTOR AND ITS GENERAL PARTNER.
(a) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of Delaware. The Guarantor has all requisite
corporate power to own and operate its properties and to carry on its business
as now conducted and as proposed to be conducted and is duly qualified to do
business and is in good standing in each jurisdiction where such qualification
is necessary or desirable in order to carry out its business as now conducted
and as proposed to be conducted;
7.2. THE LESSEE AS SUBSIDIARY.
The Lessee is a wholly-owned Subsidiary of the Guarantor.
7.3. NO VIOLATIONS.
The execution, delivery and performance of this Guaranty and the other
Lease Documents and the consummation of the transactions thereby contemplated
shall not result in any breach of, or constitute a default under, or result in
the acceleration of, or constitute an event which, with notice or passage of
time could result in default or acceleration of any obligation of the Guarantor
or any other contract, mortgage, lien, lease, agreement, instrument, franchise,
arbitration award, judgment, decree, bank loan or credit agreement, trust
indenture or other instrument to which the Guarantor is a party or by which the
Guarantor may be bound or affected and do not violate or contravene any Legal
Requirement;
7.4. NO CONSENT OR APPROVAL.
Except as already obtained or filed, as the case may be, no consent or
approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition to the Guarantor's
execution and delivery of this Guaranty or any of the other Lease Documents to
which it is a party and the performance of its obligations thereunder, or as a
condition to the validity (assuming the due authorization, execution and
delivery by the Lessor of the Leases and the other Lease Documents to which it
is a party) or enforceability of any of the same and/or the first priority of
any Liens granted thereunder;
7.5. FINANCIAL CONDITION.
(a) The Guarantor is financially solvent and there are no actions,
suits, investigations or proceedings including, without limitation, outstanding
federal or state tax liens, garnishments or insolvency and bankruptcy
proceedings, pending or, to the best of the Guarantor's knowledge and belief,
threatened:
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i. against or affecting the Guarantor which, if adversely
resolved against the Guarantor would materially adversely affect the
ability of the Guarantor to perform its obligations under this Guaranty
or any of the Lease Documents to which it is a party;
ii. against or affecting the Leased Property or the ownership,
construction, development, maintenance, management, repair, use,
occupancy, possession or operation thereof; or
iii. which may involve or affect the validity, priority or
enforceability of this Guaranty, the Leases or any of the other Lease
Documents, at law or in equity, or before or by any arbitrator or
Governmental Authority;
(b) After giving effect to the consummation of the transaction
contemplated by the Leases and the other Lease Documents, the Guarantor:
i. will be able to pay its debts as they become due;
ii. will have sufficient funds and capital to carry on its
business as now conducted or as contemplated to be conducted (in
accordance with the terms of the Lease Documents);
iii. will own property having a value both at fair valuation and
at present fair saleable value greater than the amount required to pay
its debts as they become due; and
iv. will not be rendered insolvent as determined by applicable
law;
(c) The Guarantor is not a party to any agreement, the terms of which
now have or, based upon current circumstances, as far as can be reasonably
foreseen, may have a material adverse effect on its financial condition or
business or on the operation of the Facilities;
(d) The Guarantor is not delinquent or claimed to be delinquent
under any material obligation for the payment of borrowed money;
7.6. COMMERCIAL ACTS.
The Guarantor's performance of and compliance with the obligations and
conditions set forth herein and the other Lease Documents to which it is a party
will constitute commercial acts done and performed for commercial purposes;
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7.7. FILING OF TAX RETURNS.
The Guarantor has filed all federal, state and local tax returns which
are required to be filed as to which extensions are not currently in effect and
has paid all taxes, assessments, impositions, fees and other governmental
charges (including interest and penalties) which have become due pursuant to
such returns or pursuant to any assessment or notice of tax claim or deficiency
received by the Guarantor. No tax liability has been asserted by the Internal
Revenue Service against the Guarantor or any other federal, state or local
taxing authority for taxes, assessments, impositions, fees or other governmental
charges (including interest or penalties thereon) in excess of those already
paid;
7.8. ACCURACY OF FINANCIAL STATEMENTS AND OTHER INFORMATION.
The financial statements of the Guarantor given to the Lessor in
connection with the consummation of the transaction contemplated by the Lease
Documents were true, complete and accurate and fairly presented the financial
condition of the Guarantor as of the date thereof and for the periods covered
thereby, having been prepared in accordance with GAAP and such financial
statements disclosed all material liabilities of the Guarantor as required by
GAAP. There has been no material adverse change since such date with respect to
the Tangible Net Worth or liquidity of the Guarantor or with respect to any
other matters referred to or contained therein and no additional material
liabilities, including, without limitation, contingent liabilities of the
Guarantor have arisen or been incurred since such date. The projections
heretofore delivered to the Lessor continue to be reasonable (with respect to
the material assumptions upon which such projections are based) and the
Guarantor reasonably anticipates the results projected therein will be achieved,
there having been (A) no material adverse change in the business, assets or
condition, financial or otherwise of the Guarantor or (B) no material depletion
of the Guarantor's cash or decrease in working capital except in the ordinary
course of business;
7.9. REPRESENTATIONS AND WARRANTIES IN LEASE DOCUMENTS.
All of the representations and warranties made in any of the Lease
Documents with respect to the Guarantor are true and correct; and
7.10. TERMS, CONDITIONS, COVENANTS AND AGREEMENTS CONTAINED IN LEASE
DOCUMENTS.
The Guarantor shall be bound by all terms, conditions, covenants and
agreements contained in any of the Lease Documents with respect to the
Guarantor.
8. CONTINUING REPRESENTATIONS AND WARRANTIES: All representations
and warranties contained in this Guaranty shall constitute continuing
representations and warranties which shall remain true, correct and complete as
long as this Guaranty is in force and effect. Notwithstanding the provisions of
the foregoing sentence but without derogation from any other terms and
provisions of this Guaranty, including, without limitation, those terms and
provisions containing covenants to
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be performed or conditions to be satisfied on the part of the Guarantor, the
representations and warranties contained in Sections 7.5(a), 7.5(c), 7.5(d), in
the second sentence of Section 7.7 and in the second and third sentences of
Section 7.8 hereof shall not constitute continuing representations and
warranties hereunder.
9. NO CONTEST WITH THE LESSOR. No set-off, counterclaim, reduction
or diminution of any obligation, or any claim or defense of any kind or nature
which the Guarantor has or may have against the Lessee, any other member of the
Leasing Group, any of the Related Parties or the Lessor shall be available
hereunder to the Guarantor. The Guarantor shall not assert and hereby waives any
right whatsoever that the Guarantor may have at law or in equity, including,
without limitation, any right of subrogation or to seek contribution,
indemnification or any other form of reimbursement from the Lessee, any other
endorser, surety or guarantor of any of the Obligations or any other Person now
or hereafter primarily or secondarily liable for any of the Obligations. The
Guarantor shall not, in any proceedings under the Bankruptcy Code or insolvency
proceedings of any nature, prove in competition with the Lessor in respect of
any payment hereunder or be entitled to have the benefit of any counterclaim or
proof of claim or dividend or payment by or on behalf of the Lessee, any other
member of the Leasing Group or any of the Related Parties or the benefit of any
other security for any Obligation which, now or hereafter, the Guarantor may
hold in competition with the Lessor.
10. SET-OFF. In addition to any rights now or hereafter granted under
any agreement or applicable law and not by way of limitation of any such rights,
upon the occurrence of any Lease Default, including, without limitation, any
default by the Guarantor hereunder, the Lessor and the other Meditrust Entities
are hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Guarantor or to any other
Person, all of which are hereby expressly waived, to set off and to appropriate
and apply any and all deposits and any other indebtedness at any time held by or
owing to the Lessor (or any of the other Meditrust Entities) to or for the
credit or the account of the Guarantor against and on account of the obligations
and liabilities of the Guarantor to the Lessor or any of the other Meditrust
Entities under this Guaranty or otherwise, irrespective of whether or not the
Lessor or any of the other Meditrust Entities shall have made any demand
hereunder or under any Related Party Agreement and although said obligations,
liabilities or claims, or any of them, may then be contingent or unmatured and
without regard to the availability or adequacy of other collateral. The
Guarantor also grants to the Lessor (and the other Meditrust Entities) a
security interest in all of the Guarantor's deposits, securities and other
property at any time and from time to time, in the possession of the Lessor (or
any of the other Meditrust Entities) and, upon the occurrence of any Lease
Default, the Lessor and the other Meditrust Entities may exercise all rights and
remedies of a secured party under the Massachusetts Uniform Commercial Code. The
Lessor and the other Meditrust Entities shall have no duty to take steps to
preserve rights against prior parties as to such securities or other property.
The Guarantor hereby agrees that all collateral now or hereafter
granted as security for any indebtedness of the Guarantor to the Lessor and/or
the other Meditrust Entities shall be deemed to be additional collateral
securing the Obligations.
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11. WAIVERS. The Guarantor waives presentment for payment, demand,
protest, notice of nonpayment, notice of dishonor, protest of any dishonor,
suretyship defenses, notice of protest and protest of the Lease Documents,
including, without limiting the generality of the foregoing, any and all rights
the Guarantor may have under N.C. Gen. Stat. Section 26-7 et seq., and all other
notices in connection with (a) the delivery or the acceptance of the Lease
Documents and any reliance thereon and/or (b) the performance, default (except
notice of default as specifically elsewhere required under any of the Lease
Documents) or enforcement of any obligation under the Lease Documents, and
agrees that its liability shall be unconditional without regard to the liability
of any other party and shall not be in any manner affected by any indulgence,
extension of time, renewal, waiver or modification granted or consented to by
the Lessor; and the Guarantor consents to any and all extensions of time,
renewals, waivers or modifications that may be granted or consented to by the
Lessor with respect to the payment or performance of any obligations under the
Lease Documents and to the release of the Collateral (or any part thereof), with
or without substitution, and agrees that additional makers, endorsers,
guarantors or sureties may become parties to the Lease Documents without notice
to the Guarantor or affecting the liability of the Guarantor hereunder or under
any of the other Lease Documents to which the Guarantor is a party.
12. INDEMNIFICATION. Except with respect to the gross negligence or
wilful misconduct of the Lessor or any of the other Indemnified Parties, as to
which no indemnity is provided, the Guarantor hereby agrees to defend with
counsel acceptable to the Lessor, indemnify and hold harmless the Lessor and
each of the other Indemnified Parties from and against all damages, losses,
claims, liabilities, obligations, penalties, causes of action, costs and
expenses (including, without limitation, attorneys' fees, court costs and other
expenses of litigation) suffered by, or claimed or asserted against, the Lessor
or any of the other Indemnified Parties, directly or indirectly, based on,
arising out of or resulting from (a) the use and occupancy of the Leased
Property or any business conducted therein, (b) any act, fault, omission to act
or misconduct by (i) any member of the Leasing Group, (ii) any Affiliate of the
Lessee, (iii) any Sublessee, or (iv) any employee, agent, licensee, business
invitee, guest, customer, contractor or sublessee of any of the foregoing
parties, relating to, directly or indirectly, the Leased Property, (c) any
accident, injury or damage whatsoever caused to any Person, including, without
limitation, any claim of malpractice, or to the property of any Person in or
about the Leased Property or outside of the Leased Property where such accident,
injury or damage results or is claimed to have resulted from any act, fault,
omission to act or misconduct by any member of the Leasing Group or any
Affiliate of the Lessee or any employee, agent, licensee, contractor or
sublessee of any of the foregoing parties, (d) any Lease Default, (e) any claim
brought or threatened against any of the Indemnified Parties by any member of
the Leasing Group (unless such member of the Leasing Group prevails in such
claim against one of the Indemnified Parties) or by any other Person on account
of (i) the Lessor's relationship with any member of the Leasing Group pertaining
in any way to the Leased Property and/or the transaction evidenced by the Lease
Documents and/or (ii) the Lessor's negotiation of, entering into and/or
performing any of its obligations and/or exercising any of its right and
remedies under any of the Lease Documents, (f) any attempt by any member of the
Leasing Group, any Affiliate of the Lessee or any other Sublessee to transfer or
relocate any of the Permits to any location other than the Leased Property
and/or (g) the enforcement of this indemnity. Any amounts which become payable
by the Guarantor
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under this Section 12 shall be a demand obligation of the Guarantor to the
Lessor. The indemnity provided for in this Section 12 shall survive any
termination of this Guaranty.
13. NOTICES. Any notice, request, demand, statement or consent made
hereunder shall be in writing and shall be deemed duly given if personally
delivered, sent by certified mail, return receipt requested, or sent by a
nationally recognized commercial overnight delivery service with provisions for
a receipt, postage or delivery charges prepaid, and shall be deemed given when
postmarked or placed in the possession of such mail or delivery service and
addressed as follows:
IF TO THE GUARANTOR: Alternative Living Services, Inc.
450 North Sunnyslope Road
Suite 300
Brookfield, Wisconsin 53005
Attn: William F. Lasky, President
WITH A COPY TO: Miriam J. Dent, Esq.
Rogers & Hardin
229 Peachtree Street, N.E., 2700 International Tower
Atlanta, Georgia 30303
IF TO THE LESSOR: Meditrust Acquisition Corporation III
197 First Avenue
Needham Heights, Massachusetts 02194
Attn: President
WITH COPIES TO: Meditrust Mortgage Investments, Inc.
197 First Avenue
Needham Heights, Massachusetts 02194
Attn: General Counsel
Frank Giso, III, Esq.
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
or at such other place as any of the parties hereto may from time to time
hereafter designate to the others in writing. Any notice given to the Guarantor
by the Lessor at any time shall not imply that such notice or any further or
similar notice was or is required.
14. GOVERNING LAW. This Guaranty shall be construed, and the rights
and obligations of the Lessor and the Guarantor shall be determined, in
accordance with the laws of the Commonwealth of Massachusetts.
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The Guarantor hereby consents to personal jurisdiction in the courts of
the Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts as well as to the jurisdiction of all courts from
which an appeal may be taken from the aforesaid courts, for the purpose of any
suit, action or other proceeding arising out of or with respect to any of the
Lease Documents, the negotiation and/or consummation of the transactions
evidenced by the Lease Documents, the Lessor's relationship of any member of the
Leasing Group in connection with the transactions evidenced by the Lease
Documents and/or the performance of any obligation or the exercise of any remedy
under any of the Lease Documents and expressly waives any and all objections the
Guarantor may have as to venue in any of such courts.
15. GENERAL PROVISIONS; RULES OF CONSTRUCTION. The provisions set
forth in Article 23 and Sections 2.2, 11.5.4, 16.8 through 16.10, inclusive,
17.2, 24.2 through 24.10, inclusive, and 24.12 of the Leases are hereby
incorporated herein by reference, mutatis, mutandis and shall be applicable to
this Guaranty as if set forth in full herein.
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES ANY STATUTORY APPRAISAL RIGHTS
WHICH MEANS THE HIGH BID AT A JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE
DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE LEASED PROPERTY.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as an
instrument under seal as of the 21st day of November, 1997.
WITNESS: GUARANTOR:
ALTERNATIVE LIVING SERVICES, INC.
By: /s/
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David M. Boitano, its Vice President
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