Exhibit 10.40


CONFIRMATION OF GUARANTEES AND CONFIRMATION 

AND AMENDMENT OF OTHER INCIDENTAL DOCUMENTS


THIS CONFIRMATION OF GUARANTEES AND CONFIRMATION
AND AMENDMENT OF OTHER INCIDENTAL DOCUMENTS (this “Confirmation”) is made as of January 1,
2007 by FIVE STAR QUALITY CARE, INC., a Maryland corporation  (the “Guarantor”), FIVE
STAR QUALITY CARE TRUST, a Maryland business trust (the “Tenant”),
FSQ, INC., a Delaware corporation
(the “Tenant Pledgor”), each of the parties identified on the signature
page hereof as a subtenant pledgor (collectively, the “Subtenant Pledgors”)
and each of the parties identified on the signature page hereof as a subtenant
(collectively, the “Subtenants”) for the benefit of each of the parties
identified on the signature page hereof as a landlord (collectively, the “Landlords”).


W  I  T  N  E
S  S  E  T  H :


WHEREAS, pursuant to the terms of that certain Second Amended
and Restated Lease Agreement, dated as of November 19, 2004, as amended by that
certain First Amendment of Lease dated as of May 17, 2005, that certain Second Amendment to Second
Amended and Restated Lease Agreement dated as of June 3, 2005, that certain
Third Amendment to Second Amended and Restated Lease Agreement dated as of
October 31, 2005, that certain other Third Amendment to Second Amended and
Restated Lease Agreement dated as of December 30, 2005, that certain Letter
Agreement dated as of March 13, 2006, that certain Fifth Amendment to Second
Amended and Restated Lease Agreement dated as of September 1, 2006, that certain
Sixth Amendment to Second Amended and Restated Lease Agreement dated as of
October 1, 2006, that certain Seventh Amendment to Second Amended and Restated
Lease Agreement dated as of October 1, 2006, that certain Eighth Amendment to
Second Amended and Restated Lease Agreement dated as of November 1, 2006, that
certain Ninth Amendment to Second Amended and Restated Lease Agreement dated as
of November 1, 2006, that certain Tenth Amendment to Second Amended and
Restated Lease Agreement dated as of November 6, 2006 and that certain Eleventh
Amendment to Second Amended and Restated Lease Agreement dated as of December
22, 2006 (as so amended, the “Consolidated Lease”), the Landlords
lease to the Tenant, and the Tenant leases from the Landlords, certain property,
all as more particularly described in the Consolidated Lease; and


WHEREAS, the payment and performance obligations
of the Tenant with respect to the Consolidated Lease are guaranteed by those
certain Guaranty Agreements described on Exhibit A attached hereto
(collectively, the “Guarantees”); and











WHEREAS, the payment and performance obligations
of the Tenant with respect to the Consolidated Lease are further secured by the
other Incidental Documents (this and other capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the
Consolidated Lease); and


WHEREAS, pursuant to a Twelfth Amendment to Second Amended
and Restated Lease Agreement, dated as of the date hereof (the “Twelfth
Amendment”), the Consolidated Lease is being amended to add certain
property thereto, as more particularly described in the Twelfth Amendment;


WHEREAS, the Tenant intends to enter
into a sublease (the “Sublease”) with Morningside of Belmont, LLC, a
Delaware limited liability company (“Morningside-Belmont”) to sublease
the property being added to the Consolidated Lease pursuant to the Twelfth
Amendment to Morningside-Belmont;


WHEREAS, in connection with, and as
a condition precedent to, the execution of the Twelfth Amendment by the
Landlords, the Landlords have required that the parties hereto confirm that the
Guarantees and the other Incidental Documents remain in full force and effect
and apply to the Consolidated Lease as amended by the Twelfth Amendment; and


WHEREAS, in connection with the execution
of the Twelfth Amendment and the Sublease, the parties hereto wish to amend
certain of the Incidental Documents, including (i) the Security Agreement,
dated as of December 31, 2001, by and among certain of the Subtenants and
certain of the Landlords, as amended and confirmed from time to time (the “Subtenant
Security Agreement”); (ii) the Security Agreement, dated as of
December 31, 2001, by and among the Tenant and certain of the Landlords,
as amended and confirmed from time to time (the “Tenant Security Agreement”);
and (iii) the Second Amended and Restated Pledge of Stock and Membership
Interests Agreement, dated as of May 6, 2005, made by the Subtenant Pledgors
for the benefit of the Landlords, as amended and confirmed from time to time
(the “Subtenant Pledge Agreement”), all subject to and upon the terms and conditions
herein set forth;


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 parties hereto hereby agree as follows:


1.             Amendment of
Subtenant Security Agreement.  The
Subtenant Security Agreement is hereby amended by: (i) deleting the following
paragraph 25 from Exhibit A attached thereto:











25.           Sublease Agreement, dated June 3,
2005, by and between Five Star Quality Care Trust, a Maryland business trust,
and Morningside of Belmont, LLC, a Delaware limited liability company.


(ii) inserting the following new paragraph at the end
of Exhibit A attached thereto:


Amended and Restated
Sublease Agreement, dated January 1, 2007, by and between Five Star
Quality Care Trust, a Maryland business trust, and Morningside of Belmont, LLC,
a Delaware limited liability company.


and (iii) inserting the following in the appropriate
order on Schedule 2 attached thereto:


	
  

  	
  TENNESSEE:

  	
  WALKING HORSE MEADOWS  

  207 Uffelman Drive 

  Clarksville, TN 37043

  	
   

  	
  Morningside

  of Belmont,

  LLC

  



 


2.             Amendment of
Tenant Security Agreement.  The
Tenant Security Agreement is hereby amended by inserting the following in the
appropriate order on Schedule 2 attached thereto:


	
  

  	
  TENNESSEE:

  	
  WALKING HORSE MEADOWS

  
	
   

  	
   

  	
  207 Uffelman Drive

  
	
   

  	
   

  	
  Clarksville, TN 37043

  
	
   

  	
   

  	
   

  



 


3.             Amendment of
Subtenant Pledge Agreement.  The
Subtenant Pledge Agreement is hereby amended by (i) deleting the following
paragraph 29 from Exhibit A attached thereto:


29.           Sublease Agreement, dated June 3,
2005, by and between Five Star Quality Care Trust, a Maryland business trust,
as sublandlord, and Morningside of Belmont, LLC, a Delaware limited liability
company, as subtenant.


and (ii) inserting the following new paragraph at the
end of Exhibit A attached thereto:


Amended and Restated
Sublease Agreement, dated January  1,
2007, by and between Five Star Quality Care Trust, a Maryland business trust,
as sublandlord, and Morningside of Belmont, LLC, a Delaware limited liability
company, as subtenant.


4.             Confirmation
of Guarantees.  Each of the parties
to the Guarantees hereby confirms that all references in the Guarantees











to the “Master Lease” or the “Lease” shall refer to
the Consolidated Lease as amended by the Twelfth Amendment and the Guarantees
are hereby ratified and confirmed in all respects.


5.             Confirmation of
Other Incidental Documents.  Each of
the parties to the Incidental Documents (other than the Guarantees) hereby
confirms that all references in such Incidental Documents to the “Master Lease”,
the “Lease” or the “Second Amended Lease” shall refer to the Consolidated Lease
as amended by the Twelfth Amendment and that such Incidental Documents, as
amended by this Confirmation, are hereby ratified and confirmed in all
respects.


6.             No Impairment,
Etc.  The obligations, covenants,
agreements and duties of the guarantors under the Guarantees shall not be
impaired in any manner by the execution and delivery of the Twelfth Amendment,
the Guarantees, the other Incidental Documents, or any amendments, changes or
modifications thereof, and in no event shall any ratification or confirmation
of such Guarantees or such other Incidental Documents, or the obligations,
covenants, agreements and the duties of the guarantors thereunder or of the
parties under the other Incidental Documents, including, without limitation,
this Confirmation, be required in connection with any such amendment, change or
modification.


[Signatures
on following page.]











IN
WITNESS WHEREOF, the parties hereto have caused this
Confirmation to be duly executed, as a sealed instrument, as of the date first
set forth above.


	
  

  	
  GUARANTOR  :

  
	
   

  	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief Financial

  
	
   

  	
   

  	
  Officer and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief Financial

  
	
   

  	
   

  	
  Officer and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT PLEDGOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  FSQ, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief Financial

  
	
   

  	
   

  	
  Officer and Assistant Secretary

  



 











SUBTENANT
PLEDGORS:


FSQ, INC., FIVE STAR QUALITY CARE TRUST, FVEST. JOE, INC., FIVE STAR QUALITY CARE-CA, INC., FIVE STAR QUALITY CARE-CA II, INC., FIVE STAR QUALITY CARE-CO, INC., THE HEARTLANDS RETIREMENT COMMUNITY-ELLICOTT CITY I,
INC., FIVE STAR QUALITY CARE-GA,
INC., FIVE STAR QUALITY CARE-IA,
INC., FIVE STAR QUALITY CARE-NE,
INC., FIVE STAR QUALITY CARE-WI,
INC.  and  LIFETRUST AMERICA, INC.


	
  

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief Financial 

  
	
   

  	
   

  	
  Officer and Assistant Secretary 

  
	
   

  	
   

  	
  of each of the foregoing 

  
	
   

  	
   

  	
  entities

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIFETRUST PROPERTIES, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  LifeTrust America Inc.,

  
	
   

  	
   

  	
  Its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief Financial 

  
	
   

  	
   

  	
  Officer and Assistant Secretary

  



 











 


SUBTENANTS:


FIVE
STAR QUALITY CARE-AZ, LLC, FIVE STAR QUALITY CARE-CA, LLC, FIVE STAR QUALITY
CARE-CA II, LLC,


FIVE
STAR QUALITY CARE-COLORADO, LLC, FIVE STAR QUALITY CARE-FL, LLC, FIVE STAR
QUALITY CARE-GA, LLC, FIVE STAR QUALITY CARE-GHV, LLC, FIVE STAR QUALITY
CARE-IA, LLC, FIVE STAR QUALITY CARE-IL, LLC, FIVE STAR QUALITY CARE-KS, LLC,
FIVE STAR QUALITY CARE-MD, LLC, FIVE STAR QUALITY CARE-MO, LLC, FIVE STAR
QUALITY CARE-MS, LLC, FIVE STAR QUALITY CARE-NE, LLC, FIVE STAR QUALITY
CARE-NC, LLC FIVE STAR QUALITY CARE-WI, LLC, FIVE STAR QUALITY CARE-WY, LLC,
FIVE STAR QUALITY CARE-VA, LLC, FIVE STAR QUALITY CARE-CA, INC., FIVE STAR
QUALITY CARE-IA, INC.,


FIVE
STAR QUALITY CARE-NE, INC.,


MORNINGSIDE
OF GALLATIN, LLC, THE HEARTLANDS RETIREMENT COMMUNITY — ELLICOTT CITY I, INC. and


MORNINGSIDE OF BELMONT, LLC


	
  

  	
   

  	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Bruce J. Mackey Jr.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Treasurer, Chief Financial

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Officer and Assistant Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  of each of the foregoing

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  entities

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 











MORNINGSIDE
OF ANDERSON, L.P., MORNINGSIDE OF ATHENS, LIMITED PARTNERSHIP, MORNINGSIDE OF
COLUMBUS, L.P., MORNINGSIDE OF DALTON, LIMITED PARTNERSHIP, MORNINGSIDE OF
EVANS, LIMITED PARTNERSHIP, MORNINGSIDE OF GREENWOOD, L.P. and MORNINGSIDE OF
KENTUCKY, LIMITED PARTNERSHIP


	
  

  	
  By:

  	
  LifeTrust America, Inc.,

  
	
   

  	
   

  	
  General Partner of each of the 

  
	
   

  	
   

  	
  foregoing entities

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
   

  	
  Treasurer, Chief
  Financial

  
	
   

  	
   

  	
   

  	
  Officer and
  Assistant

  
	
   

  	
   

  	
   

  	
  Secretary

  



 


MORNINGSIDE OF BELLGRADE, RICHMOND,
LLC, MORNINGSIDE OF CHARLOTTESVILLE, LLC, MORNINGSIDE OF NEWPORT NEWS, LLC and
MORNINGSIDE OF SKIPWITH — RICHMOND, LLC


	
  

  	
  By:

  	
  LifeTrust America, Inc.,

  
	
   

  	
   

  	
  Member of each of the foregoing 

  
	
   

  	
   

  	
  entities

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
   

  	
  Treasurer, Chief
  Financial

  
	
   

  	
   

  	
   

  	
  Officer and
  Assistant

  
	
   

  	
   

  	
   

  	
  Secretary

  



 











LANDLORD:


HRES2 PROPERTIES TRUST,


SPTIHS PROPERTIES TRUST,


SPT-MICHIGAN TRUST,


SPTMNR PROPERTIES TRUST,


SNH CHS PROPERTIES TRUST,


ELLICOTT CITY LAND I, LLC,


ELLICOTT CITY LAND II, LLC,


SNH/LTA PROPERTIES TRUST and


SNH/LTA
PROPERTIES GA LLC


	
  

  	
  By:

  	
  /s/ David J. Hegarty

  
	
   

  	
   

  	
  David J. Hegarty

  
	
   

  	
   

  	
  President, Chief
  Operating

  
	
   

  	
   

  	
  Officer and
  Secretary of each

  
	
   

  	
   

  	
  of the foregoing
  entities

  



 











 


The following exhibit has
been omitted and will be supplementally furnished to the Securities and
Exchange Commission upon request:


Exhibit A