Exhibit 10.10
AMENDED AND RESTATED GUARANTY
AGREEMENT
(LEASE NO. 2)
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
CCC FINANCING I TRUST , a Maryland business trust, CCC OF
KENTUCKY TRUST , a Maryland business trust, CCC PUEBLO NORTE
TRUST , a Maryland business trust, CCC INVESTMENTS I,
L.L.C. , a Delaware limited liability company, CCDE SENIOR
LIVING LLC, a Delaware limited liability company, CCOP
SENIOR LIVING LLC , a Delaware limited liability company,
CCC FINANCING LIMITED, L.P. , a Delaware limited
partnership, CCC RETIREMENT COMMUNITIES II, L.P. , a
Delaware partnership, HRES1 PROPERTIES TRUST , a Maryland
real estate investment trust, LEISURE PARK VENTURE LIMITED
PARTNERSHIP , a Delaware limited partnership, O.F.C.
CORPORATION , an Indiana corporation, SNH CHS 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, SPTIHS PROPERTIES TRUST , a
Maryland real estate investment trust, and SPTMNR 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, FS Commonwealth
LLC, a Maryland limited liability company, FS Patriot LLC, a
Maryland limited liability company, 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. 2 ”);
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. 2. The Amended Lease
No. 2 and the Incidental Documents are hereinafter
collectively referred to as the “ Amended Lease No. 2
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. 2 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. 2.
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. 2
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. 2 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
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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 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. 2
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
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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 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
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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 Amended Lease No. 2 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. 2 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. 2 Documents) or, in the case of
non-monetary obligations, perform or cause to be performed such
obligations in accordance with the Amended Lease No. 2
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. 2
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
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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. 2
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 guaran
