Exhibit 10.10
AMENDED AND RESTATED GUARANTY
AGREEMENT
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 FM FINANCING LLC, a Delaware limited liability company, SNH FM
FINANCING TRUST, a Maryland real estate investment trust, and
ELLICOTT CITY LAND I, LLC, a Delaware limited liability company,
collectively as landlord (“ Landlord
”).
W
I T N
E S S E T H
:
WHEREAS, Guarantor 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 FVE FM
Financing, Inc. (as the same may be amended, modified or
supplemented from time to time, the “ FM Financing
Lease ”);
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 FM Financing Lease. The FM Financing Lease and
the Incidental Documents are hereinafter collectively referred to
as the “ FM Financing Lease 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 FM Financing Lease 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 FM Financing Lease.
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 FM Financing Lease
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 FM
Financing Lease 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
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
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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 FM Financing Lease
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 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
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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
upon demand, at the stated or accelerated maturity thereof pursuant
to any FM Financing Lease 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 FM Financing Lease
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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 FM Financing Lease Documents) or, in
the case of non-monetary obligations, perform or cause to be
performed such obligations in accordance with the FM Financing
Lease 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 FM Financing Lease 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 FM Financing Lease
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 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.
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8.
Consents and Waivers,
Etc. Guarantor
hereby acknowledges receipt of correct and complete copies of each
of the FM Financing Lease 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
conditi
