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
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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
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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,
