Exhibit
10.12


 


SIXTH AMENDMENT TO
CREDIT AND SECURITY AGREEMENT


 


THIS SIXTH AMENDMENT TO
CREDIT AND SECURITY AGREEMENT (this “Amendment”) dated as of December 5,
2008 by and among FIVE STAR QUALITY CARE, INC. (the “Borrower”), each of the
parties identified as “Guarantor” on the signature pages hereto (each a “Guarantor”),
and WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender (the “Lender”).


 


WHEREAS, the Borrower and
the Lender have entered into that certain Credit and Security Agreement dated
as of May 9, 2005 (as amended and in effect immediately prior to the
date hereof, the “Credit Agreement”); and


 


WHEREAS, the Borrower and
the Lender desire to amend certain provisions of the Credit Agreement on the
terms and conditions contained herein.


 


NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:


 


Section 1.  Specific Amendments to Credit Agreement.  The parties hereto agree that the Credit
Agreement is amended as follows:


 


(a)                                  The Credit Agreement is amended by
restating in full the definition of “Termination Date” contained Section 1.1
as follows:


 


“Termination
Date” means May 8, 2010.


 


(b)                                 The Credit Agreement is further
amended by amending and restating Section 11.1(m)(ii) in its entirety
as follows:


 


“(ii)                            During any period of 12 consecutive
months ending after the Agreement Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Borrower was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved but excluding any director whose initial
nomination for, or assumption of office as, a director occurs as a result of an
actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the
Board of Directors) cease for any reason to constitute a majority of the Board of
Directors of the Borrower then in office; or”


 

















 


Section 2.  Specific Amendment to Fee Letter.  The parties hereto agree that the second full
paragraph of the second page of the Fee Letter is amended and restated as
follows:


 


The
term “Applicable Margin” means 2.00% with respect to LIBOR Loans and 0.25% with
respect to Base Rate Loans.


 


Section 3.  Conditions Precedent.  The effectiveness of this Amendment is
subject to receipt by the Lender of each of the following, each in form and
substance satisfactory to the Lender:


 


(a)                                  A counterpart of this Amendment duly
executed by the Borrower and each Guarantor;


 


(b)                                 The Borrower shall have paid to the
Lender an extension fee in the amount of $100,000, which such extension fee
shall be non-refundable in any event; provided, however, that if, and only if,
the Lender rescinds the amendment to the definition of “Termination Date” as
set forth in Section 4 hereof, the extension fee shall be refundable by
the Lender to the Borrower; and


 


(c)                                  Such other documents, instruments and
agreements as the Lender may reasonably request.


 


Section 4.  Rescission of Extension.  Notwithstanding anything in
this Amendment, the Credit Agreement or any other Loan Document, the Borrower
hereby acknowledges and agrees that the amendment to the definition of “Termination
Date” set forth in Section 1(a) may be rescinded by the Lender and
such amendment shall consequently be deemed null and void if, in the reasonable
credit judgment of the Lender, the audit of the Borrower’s accounts receivable,
cash and accounts payable conducted by FTI Consulting, Inc. reveals a
material deficiency in the Borrower’s financial position or general operations.


 


Section 5.  Effectiveness. Upon satisfaction of
the conditions precedent contained in Section 3, this Amendment shall be
deemed to be effective as of the date hereof.


 


Section 6.  Representations.  The Borrower represents and warrants to the
Lender that:


 


(a)                                  Authorization. 
The Borrower has the right and power, and has taken all necessary action
to authorize it, to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement and the Fee Letter, each
as amended by this Amendment, in accordance with their respective terms.  This Amendment has been duly executed and
delivered by a duly authorized officer of the Borrower and this Amendment, the
Credit Agreement and the Fee Letter, each as amended by this Amendment, is a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.


 


2

















 


(b)                                 Compliance with Laws, etc. 
The execution and delivery by the Borrower of this Amendment and the
performance by the Borrower of this Amendment, the Credit Agreement and the Fee
Letter, each as amended by this Amendment, in accordance with their respective
terms, do not and will not, by the passage of time, the giving of notice or
otherwise:  (i) require any
Governmental Approval or violate any Applicable Law relating to any Loan Party;
(ii) conflict with, result in a breach of or constitute a default under
the organizational documents of any Loan Party, or any indenture, agreement or
other instrument to which any Loan Party is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by any Loan Party.


 


(c)                                  No Default.  No Default or
Event of Default has occurred and is continuing as of the date hereof nor will
exist immediately after giving effect to this Amendment.


 


Section 7.  Reaffirmation of Representations by
Borrower.  The Borrower hereby
repeats and reaffirms all representations and warranties made by the Borrower
to the Lender in the Credit Agreement and the other Loan Documents to which it
is a party on and as of the date hereof and after giving effect to this
Amendment with the same force and effect as if such representations and
warranties were set forth in this Amendment in full.


 


Section 8.  Reaffirmation of Guaranty by Guarantors.  Each Guarantor hereby reaffirms its
continuing obligations to the Lender under Article XII of the Credit
Agreement and agrees that the transactions contemplated by this Amendment shall
not in any way affect the validity and enforceability of its obligations under Article XII
of the Credit Agreement, or reduce, impair or discharge the obligations of such
Guarantor thereunder.


 


Section 9.  Certain References.  Each reference to the Credit Agreement and
the Fee Letter in any of the Loan Documents shall be deemed to be a reference
to the Credit Agreement and the Fee Letter, as applicable, as amended by this
Amendment.


 


Section 10.  Expenses.  The Borrower shall reimburse the Lender upon
demand for all costs and expenses (including attorneys’ fees) incurred by the
Lender in connection with the preparation, negotiation and execution of this
Amendment and the other agreements and documents executed and delivered in
connection herewith.


 


Section 11.  Benefits.  This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.


 


Section 12.  GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 


Section 13.  Effect.  Except as expressly herein amended, the terms
and conditions of the Credit Agreement, the Fee Letter and the other Loan
Documents remain in full force and effect.


 


3

















 


The amendments contained
herein shall be deemed to have prospective application only, unless otherwise
specifically stated herein.


 


Section 14.  Counterparts.  This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.


 


Section 15.  Definitions.  All capitalized terms not otherwise defined
herein are used herein with the respective definitions given them in the Credit
Agreement.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Sixth Amendment to Credit and Security Agreement
to be executed as of the date first above written.


 


	
   

  	
  THE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Name:

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Title:

  	
  President and CEO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE LENDER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew Ricketts

  
	
   

  	
   

  	
  Name:

  	
  Matthew Ricketts

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Signatures Continued on Next Page]


 

















 


[Signature
Page to Sixth Amendment to Credit and Security Agreement


with
Five Star Quality Care, Inc.]


 


	
   

  	
  THE GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  ALLIANCE
  PHARMACY SERVICES, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-CA, INC.

  
	
   

  	
  FIVE
  STAR QUALITY CARE-IA, INC.

  
	
   

  	
  FIVE
  STAR QUALITY CARE-NE, INC.

  
	
   

  	
  THE
  HEARTLANDS RETIREMENT COMMUNITY — ELLICOTT CITY I, INC.

  
	
   

  	
  FIVE
  STAR QUALITY CARE-AZ, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-CA, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-COLORADO, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-CT, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-GA, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-IA, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-MO, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-NE, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-WI, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-WY, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-FL, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-KS, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-MD, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-NC, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-VA, LLC

  
	
   

  	
  FS
  LAFAYETTE TENANT TRUST

  
	
   

  	
  FS
  LEISURE PARK TENANT TRUST

  
	
   

  	
  FS
  LEXINGTON TENANT TRUST

  
	
   

  	
  FS
  TENANT POOL I TRUST

  
	
   

  	
  FS
  TENANT POOL II TRUST

  
	
   

  	
  FS
  TENANT POOL III TRUST

  
	
   

  	
  FS
  TENANT POOL IV TRUST

  
	
   

  	
  MORNINGSIDE
  OF BELMONT, LLC

  
	
   

  	
  MORNINGSIDE
  OF GALLATIN, LLC

  
	
   

  	
  MORNINGSIDE
  OF SPRINGFIELD, LLC

  
	
   

  	
  FSQC
  FUNDING CO., LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE-CA II, LLC

  
	
   

  	
  FIVE
  STAR QUALITY CARE TRUST

  
	
   

  	
  FS
  TENANT HOLDING COMPANY TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Name:

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Title:

  	
  President and CEO

  



 


[Signatures Continued on
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[Signature
Page to Sixth Amendment to Credit and Security Agreement


with
Five Star Quality Care, Inc.]


 


	
   

  	
  THE GUARANTORS (cont.):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORNINGSIDE
  OF BELLGRADE, RICHMOND, LLC

  
	
   

  	
  MORNINGSIDE
  OF CHARLOTTESVILLE, LLC

  
	
   

  	
  MORNINGSIDE
  OF NEWPORT NEWS, LLC

  
	
   

  	
  MORNINGSIDE
  OF SKIPWITH-RICHMOND, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LIFETRUST AMERICA,
  INC., its Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Name:

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Title:

  	
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORNINGSIDE OF ALABAMA,
  L.P.

  
	
   

  	
  MORNINGSIDE OF
  ANDERSON, L.P.

  
	
   

  	
  MORNINGSIDE OF ATHENS,
  LIMITED PARTNERSHIP

  
	
   

  	
  MORNINGSIDE OF
  COLUMBUS, L.P.

  
	
   

  	
  MORNINGSIDE OF DALTON,
  LIMITED PARTNERSHIP

  
	
   

  	
  MORNINGSIDE OF DECATUR,
  L.P.

  
	
   

  	
  MORNINGSIDE OF EVANS,
  LIMITED PARTNERSHIP

  
	
   

  	
  MORNINGSIDE OF
  GREENWOOD, L.P.

  
	
   

  	
  MORNINGSIDE OF
  KENTUCKY, LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LIFETRUST AMERICA, INC., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Name:

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Title:

  	
  President and CEO