Exhibit 10.12
AMENDED AND RESTATED GUARANTY
AGREEMENT
(LEASE NO. 4)
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
CCOP SENIOR LIVING LLC , a Delaware limited liability
company, SNH CHS PROPERTIES TRUST, a Maryland real estate
investment trust, SNH NS PROPERTIES TRUST, a Maryland real
estate investment trust, SNH SOMERFORD PROPERTIES TRUST, a
Maryland real estate investment trust, SNH/LTA PROPERTIES GA
LLC , a Maryland limited liability company, SNH/LTA
PROPERTIES TRUST , a Maryland real estate investment trust, and
SPTIHS PROPERTIES TRUST , a Maryland real estate investment
trust (collectively, “ 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 and July 1, 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 and July 1, 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 — NS Tenant, LLC, a Maryland limited
liability company, Five Star Quality Care Trust, a Maryland
business trust and FS Tenant Holding Company Trust , a
Maryland business trust (collectively, “ Tenant
”) (as the same may be
amended, modified or supplemented from time to
time, the “ Amended Lease No. 4
”);
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. 4. The Amended
Lease No. 4 and the Incidental Documents are hereinafter
collectively referred to as the “ Amended Lease No. 4
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. 4 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. 4.
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. 4 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. 4 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
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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
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. 4 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
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between the parties and except further that
Landlord may disclose such information to its prospective lenders,
provided 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.
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4.
Guarantee . Guarantor hereby unconditionally
guarantees that the Guaranteed Obligations which are monetary
obligations shall be paid in full when due and payable, whether
upon demand, at the stated or accelerated maturity thereof pursuant
to any Amended Lease No. 4 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. 4 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. 4 Documents) or, in the case of
non-monetary obligations, perform or cause to be performed such
obligations in accordance with the Amended Lease No. 4
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. 4 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. 4 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.
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7.
Additional Guarantees . This Guaranty shall be
in addition to any other guarantee or other security for the
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
