Exhibit 10.53
AMENDED AND RESTATED GUARANTY
AGREEMENT
THIS AMENDED AND RESTATED
GUARANTY AGREEMENT (this
“ Agreement ”) is entered into as of October 1,
2006 by FIVE STAR QUALITY CARE, INC. , a Maryland
corporation (the “ Guarantor ”), for the benefit
of SENIOR HOUSING PROPERTIES TRUST, a Maryland real estate
investment trust (together with its successors and assigns, “
SNH ”), and HRES1 PROPERTIES TRUST, a Maryland
real estate investment trust (together with its successors and
assigns, the “ Landlord ” and, together with
SNH, collectively, the “ Beneficiaries
”).
W
I T N
E S S E T H
:
WHEREAS, pursuant to a Master Lease Agreement, dated as
of March 3, 2006 (as amended to date, the “ Original
Lease ”), the Landlord leased to FS PATRIOT LLC and FS
COMMONWEALTH LLC, each a Maryland limited liability company,
jointly and severally (the “ Tenant ”) certain
real property, together with certain related improvements and
personal property, as more particularly described in the Original
Lease; and
WHEREAS , the Guarantor and the Beneficiaries are
parties to that certain Guaranty Agreement, dated as of March 3,
2006 (the “ Original Guaranty ”), executed in
connection with the Original Lease; and
WHEREAS , Landlord and Tenant have entered into that
certain Amended and Restated Master Lease Agreement, dated as of
the date hereof (the “ New Lease ”), which
amends and restates the Original Lease in its entirety;
and
WHEREAS , the Guarantor and the Beneficiaries wish to
amend and restate the Original Guaranty to clarify that the
Guarantor guarantees all of the payment and performance obligations
of the Tenant with respect to the New 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, the
Guarantor hereby agrees as follows:
1.
Certain Terms . Capitalized terms used and not
otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the New Lease. The New Lease and
the Incidental Documents are herein collectively referred to as the
“ Transaction Documents .”
2.
Guaranteed Obligations . For purposes of this
Agreement, the term “ Guaranteed Obligations ”
shall mean (i) the payment and performance of each and every
obligation of the Tenant to the Landlord under the Transaction
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 New Lease and (ii) the
repayment to the Landlord and its Affiliated Persons of any and all
amounts from time to time advanced or incurred by the Landlord or
such Affiliated Persons in connection with any guaranty or other
agreement provided by the Landlord or such Affiliated Persons to
any Governmental Agency to facilitate the licensing of any Facility
located upon the Leased Property.
3.
Representations and Covenants . The Guarantor
represents, warrants, covenants, and agrees that:
3.1 Incorporation of Representations
and Warranties . The representations and warranties
of the Tenant and its Affiliated Persons set forth in the
Transaction Documents are true and correct on and as of the date
hereof in all material respects.
3.2 Performance of Covenants and
Agreements . The Guarantor hereby agrees to take all
lawful action in its power to cause the Tenant duly and punctually
to perform all of the covenants and agreements set forth in the
Transaction Documents.
3.3 Validity of Agreement
. The Guarantor has duly and validly executed and delivered
this Agreement; this Agreement constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the
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 Agreement have
been duly authorized by all requisite action of the Guarantor and
such execution, delivery and performance by the 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 the 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,
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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 .
The Guarantor agrees, as principal obligor and not as guarantor
only, to pay to the Beneficiaries forthwith, upon demand, in
immediately available federal funds, all costs and expenses
(including reasonable attorneys’ fees and disbursements)
incurred or expended by the Beneficiaries in connection with the
enforcement of this Agreement, together with interest on amounts
recoverable under this Agreement from the time such amounts become
due until payment at the Overdue Rate. The Guarantor’s
covenants and agreements set forth in this Section 3.4 shall
survive the termination of this Agreement.
3.5 Notices . The
Guarantor shall promptly give notice to the Beneficiaries of any
event known to it which might reasonably result in a material
adverse change in its financial condition.
3.6 Reports . The
Guarantor shall promptly provide to the Landlord each of the
financial reports, certificates and other documents required of it
under the Transaction Documents.
3.7 Books and Records .
The 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. The
Guarantor shall permit access by the Beneficiaries and their agents
to the books and records maintained by the Guarantor during normal
business hours and upon reasonable notice. Any proprietary
information obtained by Landlord with respect to the Guarantor
pursuant to the provisions of this Agreement 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.
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3.8 Taxes, Etc . The
Guarantor shall pay and discharge promptly as they become due and
payable all taxes, assessments and other governmental charges or
levies imposed upon the Guarantor or the income of the Guarantor or
upon any of the property, real, personal or mixed, of the
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
the Guarantor; provided , however , that the
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 the Guarantor shall have set aside on
its books such reserves of the Guarantor, if any, with respect
thereto as are required by generally accepted accounting
principles.
3.9 Legal Existence of
Guarantor . The 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 . The
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 . The
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 the Guarantor.
3.12 No Change in Control
. The Guarantor shall not permit the occurrence of any direct
or indirect Change in Control of either or both of the Entities
comprising the Tenant or the Guarantor.
4.
Guarantee .
The 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 Transaction 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 Transaction
Documents. With respect to the Guaranteed Obligations which
are monetary obligations, this guarantee is a guarantee of payment
and not of collectibility 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, the Guarantor shall, in the case of
monetary obligations, within five (5) Business Days after receipt
of notice from the applicable Beneficiary, pay or cause to be paid
to such Beneficiary 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 Transaction Documents) or, in the case
of nonmonetary obligations, perform or cause to be performed such
obligations in accordance with the Transaction
Documents.
5.
Set-Off . The Guarantor hereby authorizes the 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 the Landlord to
it against amounts payable under this Agreement. The Landlord
shall promptly notify the Guarantor of any such set-off made by the
Landlord and the application made by the Landlord of the proceeds
thereof.
6.
Unenforceability of Guaranteed Obligations, Etc.
If the 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 Transaction
Documents), or if any other moneys included in the Guaranteed
Obligations have become unrecoverable from the Tenant by operation
of law or for any other reason, including,
