**Exhibit10.10**

 

**AMENDED AND RESTATED GUARANTY AGREEMENT**

**(****LEASE NO. 2****)**

 

**THISAMENDED AND RESTATED GUARANTY AGREEMENT** (this “Guaranty”) is entered into as of August4, 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 KENTUCKYTRUST**, a Maryland business trust, **CCCPUEBLO NORTE TRUST**, a Maryland business trust, **CCC INVESTMENTS I, L.L.C.**, a Delawarelimited liability company, **CCDE SENIOR LIVINGLLC,** a Delaware limited liability company, **CCOP SENIOR LIVING LLC**, a Delaware limitedliability company, **CCC FINANCING LIMITED,L.P.**, a Delaware limited partnership, **CCC RETIREMENT COMMUNITIES II, L.P.**, a Delaware partnership, **HRES1 PROPERTIES TRUST**, a Maryland realestate investment trust, **LEISURE PARK VENTURELIMITED PARTNERSHIP**, a Delaware limited partnership, **O.F.C. CORPORATION**, an Indiana corporation,**SNH CHS PROPERTIES TRUST**, aMaryland real estate investment trust, **SNHSOMERFORD PROPERTIES TRUST**, a Maryland real estate investment trust,**SNH/LTA PROPERTIES GA LLC**, aMaryland limited liability company, **SNH/LTAPROPERTIES TRUST**, a Maryland real estate investment trust, **SPTIHS PROPERTIES TRUST**, a Maryland realestate investment trust, and **SPTMNRPROPERTIES TRUST**, a Maryland real estate investment trust,collectively as landlord (“Landlord”).

 

**W****ITNESSETH :**

 

**WHEREAS,** Guarantor andLandlord and certain affiliates of Landlord are parties to those certain Amended and Restated GuarantyAgreements, dated as of June 30, 2008 (collectively, the “OriginalGuarantees”); and

 

**WHEREAS,** the Original Guarantees guarantee all ofthe payment and performance obligations of the tenants under those certainAmended and Restated Lease Agreements, dated as of June 30, 2008, asfurther described in the Original Guarantees (collectively, the “OriginalLeases”); and

 

**WHEREAS,**the landlordsand tenants under the Original Leases are conveying their interests in certainof the properties demised thereunder and, in connection therewith, they andcertain of their affiliates are amending and restating the Original Leases intoseparate leases (collectively, the “Restated Leases”); and

 

**WHEREAS**, in connection with the execution anddelivery of the Restated Leases, Guarantor, Landlord andcertain affiliates of Landlord have agreed to amend and restate the OriginalGuarantees into separate guarantees that will each guaranty all 

 

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of the payment andperformance obligations of each tenant under a Restated Lease; and

 

**WHEREAS**, this Guarantyamends and restates the Original Guarantees with respect to that certainAmended and Restated Lease Agreement, dated as of the date hereof, betweenLandlord and FiveStar Quality Care Trust, a Maryland business trust, FS Commonwealth LLC, aMaryland limited liability company, FS Patriot LLC, a Maryland limitedliability company, and FS Tenant Holding Company Trust, a Maryland businesstrust (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 forother good and valuable consideration, the mutual receipt and legal sufficiencyof which are hereby acknowledged, Guarantor hereby agrees as follows:

 

1.                                       **CertainTerms****.**  Capitalizedterms used and not otherwise defined in this Guaranty shall have the meaningsascribed to such terms in the Amended Lease No. 2.  The Amended Lease No. 2 and theIncidental Documents are hereinafter collectively referred to as the “AmendedLease No. 2 Documents”.

 

2.                                       **GuaranteedObligations****.**  For purposes of this Guaranty the term “GuaranteedObligations” shall mean the payment and performance of each and everyobligation of Tenant to Landlord under the Amended Lease No. 2 Documentsor relating thereto, whether now existing or hereafter arising, and including,without limitation, the payment of the full amount of the Rent payable underthe Amended Lease No. 2.

 

3.                                       **Representationsand Covenants****.**  Guarantor represents, warrants, covenants,and agrees that:

 

3.1              **Incorporation of Representations andWarranties****. **Therepresentations and warranties of Tenant and its Affiliated Persons set forthin the Amended Lease No. 2 Documents are true and correct on and as of thedate hereof in all material respects.

 

3.2              **Performance of Covenants and Agreements****.**  Guarantor hereby agrees to take all lawfulaction in its power to cause Tenant duly and punctually to perform all of thecovenants and agreements set forth in the Amended Lease No. 2 Documents.

 

3.3              **Validity of Agreement****.**  Guarantor has duly and validly executed anddelivered this Guaranty; this Guaranty constitutes the legal, valid and bindingobligation of 

 

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Guarantor,enforceable against Guarantor in accordance with its terms, except as theenforceability thereof may be subject to bankruptcy, fraudulent conveyance,insolvency, reorganization, moratorium and other laws relating to or affectingcreditors’ rights generally and subject to general equitable principles,regardless of whether enforceability is considered in a proceeding at law or inequity; and the execution, delivery and performance of this Guaranty have beenduly authorized by all requisite action of Guarantor and such execution,delivery and performance by Guarantor will not result in any breach of theterms, conditions or provisions of, or conflict with or constitute a defaultunder, or result in the creation of any lien, charge or encumbrance upon any ofthe property or assets of Guarantor pursuant to the terms of, any indenture,mortgage, deed of trust, note, other evidence of indebtedness, agreement orother instrument to which it may be a party or by which it or any of itsproperty or assets may be bound, or violate any provision of law, or anyapplicable order, writ, injunction, judgment or decree of any court or anyorder or other public regulation of any governmental commission, bureau oradministrative agency.

 

3.4              **Payment of Expenses****.**  Guarantor agrees, as principal obligor andnot as guarantor only, to pay to Landlord forthwith, upon demand, inimmediately available federal funds, all costs and expenses (includingreasonable attorneys’ fees and disbursements) incurred or expended by Landlordin connection with the enforcement of this Guaranty, together with interest onamounts recoverable under this Guaranty from the time such amounts become dueuntil payment at the Overdue Rate. Guarantor’s covenants and agreements set forth in this Section 3.4shall survive the termination of this Guaranty.

 

3.5              **Notices****.**  Guarantor shall promptly give notice toLandlord of any event known to it which might reasonably result in a materialadverse change in its financial condition.

 

3.6              **Reports****.**  Guarantor shall promptly provide to Landlordeach of the financial reports, certificates and other documents required of itunder the Amended Lease No. 2 Documents.

 

3.7              **Books and Records****.**  Guarantor shall at all times keep properbooks of record and account in which full, true and correct entries shall bemade of its transactions in accordance with generally accepted accountingprinciples and shall set aside on its books from its earnings for each fiscalyear all such proper reserves, including reserves for depreciation, depletion,obsolescence and amortization of its properties 

 

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duringsuch fiscal year, as shall be required in accordance with generally acceptedaccounting principles, consistently applied, in connection with itsbusiness.  Guarantor shall permit accessby Landlord and its agents to the books and records maintained by Guarantorduring normal business hours and upon reasonable notice.  Any proprietary information obtained byLandlord with respect to Guarantor pursuant to the provisions of this Guarantyshall be treated as confidential, except that such information may be disclosedor used, subject to appropriate confidentiality safeguards, pursuant to anycourt order or in any litigation between the parties and except further thatLandlord may disclose such information to its prospective lenders, providedthat Landlord shall direct such lenders to maintain such information asconfidential.

 

3.8              **Taxes, Etc****.**  Guarantor shall pay and discharge promptly asthey become due and payable all taxes, assessments and other governmental chargesor levies imposed upon Guarantor or the income of Guarantor or upon any of theproperty, real, personal or mixed, of Guarantor, or upon any part thereof, aswell as all claims of any kind (including claims for labor, materials andsupplies) which, if unpaid, might by law become a lien or charge upon anyproperty and result in a material adverse change in the financial condition ofGuarantor; provided, however, that Guarantor shall not berequired to pay any such tax, assessment, charge, levy or claim if the amount,applicability or validity thereof shall currently be contested in good faith byappropriate proceedings or other appropriate actions promptly initiated anddiligently conducted and if Guarantor shall have set aside on its books suchreserves of Guarantor, if any, with respect thereto as are required bygenerally accepted accounting principles.

 

3.9              **Legal Existence of Guarantor****.**  Guarantor shall do or cause to be done allthings necessary to preserve and keep in full force and effect its legal existence.

 

3.10        **Compliance****.**  Guarantor shall use reasonable businessefforts to comply in all material respects with all applicable statutes, rules,regulations and orders of, and all applicable restrictions imposed by, allgovernmental authorities in respect of the conduct of its business and theownership of its property (including, without limitation, applicable statutes,rules, regulations, orders and restrictions relating to environmental, safetyand other similar standards or controls).

 

3.11        **Insurance****.**  Guarantor shall maintain, with financiallysound and reputable insurers, insurance with respect 

 

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toits properties and business against loss or damage of the kinds customarilyinsured against by owners of established reputation engaged in the same orsimilar businesses and similarly situated, in such amounts and by such methodsas shall be customary for such owners and deemed adequate by Guarantor.

 

3.12        **No Change in Control****.**  Guarantor shall not permit the occurrence ofany direct or indirect Change in Control of Tenant or Guarantor.

 

4.                                       **Guarantee****.**  Guarantor hereby unconditionally guaranteesthat the Guaranteed Obligations which are monetary obligations shall be paid infull when due and payable, whether upon demand, at the stated or acceleratedmaturity thereof pursuant to any Amended Lease No. 2 Document, orotherwise, and that the Guaranteed Obligations which are performanceobligations shall be fully performed at the times and in the manner such performanceis required by the Amended Lease No. 2 Documents.  With respect to the Guaranteed Obligationswhich are monetary obligations, this guarantee is a guarantee of payment andnot of collectability and is absolute and in no way conditional or contingent.  In case any part of the GuaranteedObligations shall not have been paid when due and payable or performed at thetime performance is required, Guarantor shall, in the case of monetaryobligations, within five (5) Business Days after receipt of notice fromLandlord, pay or cause to be paid to Landlord the amount thereof as is then dueand payable and unpaid (including interest and other charges, if any, duethereon through the date of payment in accordance with the applicableprovisions of the Amended Lease No. 2 Documents) or, in the case ofnon-monetary obligations, perform or cause to be performed such obligations inaccordance with the Amended Lease No. 2 Documents.

 

5.                                       **Set-Off****.**  Guarantor hereby authorizes Landlord, at anytime and without notice, to set off the whole or any portion or portions of anyor all sums credited by or due from Landlord to it against amounts payableunder this Guaranty.  Landlord shallpromptly notify Guarantor of any such set-off made by Landlord and theapplication made by Landlord of the proceeds thereof.

 

6.                                       **Unenforceabilityof Guaranteed Obligations, Etc.**  If Tenant is for any reason under no legalobligation to discharge any of the Guaranteed Obligations (other than becausethe same have been previously discharged in accordance with the terms of theAmended Lease No. 2 Documents), or if any other moneys included in theGuaranteed Obligations have become unrecoverable from Tenant by operation oflaw or for any other reason, including, without limitation, the invalidity or irregularityin 

 

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whole or in part of anyGuaranteed Obligation or of any Transaction Document or any limitation on theliability of Tenant thereunder not contemplated by the Amended Lease No. 2Documents or any limitation on the method or terms of payment thereunder whichmay now or hereafter be caused or imposed in any manner whatsoever, theguarantees contained in this Guaranty shall nevertheless remain in full forceand effect and shall be binding upon Guarantor to the same extent as ifGuarantor at all times had been the principal debtor on all such GuaranteedObligations.

 

7.                                       **AdditionalGuarantees****.**  This Guaranty shall be in addition to anyother guarantee or other security for the Guaranteed Obligations and it shallnot be prejudiced or rendered unenforceable by the invalidity of any such otherguarantee or security or by any waiver, amendment, release or modificationthereof.

 

8.                                       **Consentsand Waivers, Etc.** Guarantor hereby acknowledges receipt of correct and complete copies ofeach of the Amended Lease No. 2 Documents, and consents to all of theterms and provisions thereof, as the same may be from time to time hereafteramended or changed in accordance with the terms and conditions thereof, and,except as otherwise provided herein, to the maximum extent permitted byapplicable law, waives (a) presentment, demand for payment, and protest ofnonpayment, of any principal of or interest on any of the GuaranteedObligations, (b) notice of acceptance of this Guaranty and of diligence,presentment, demand and protest, (c) notice of any default hereunder andany default, breach or nonperformance or Event of Default under any of theGuaranteed Obligations or the Amended Lease No. 2 Documents, (d) noticeof the terms, time and place of any private or public sale of any collateralheld as security for the Guaranteed Obligations, (e) demand forperformance or observance of, and any enforcement of any provision of, or anypursuit or exhaustion of rights or remedies against Tenant or any otherguarantor of the Guaranteed Obligations, under or pursuant to the Amended LeaseNo. 2 Documents, or any agreement directly or indirectly relating theretoand any requirements of diligence or promptness on the part of the holders ofthe Guaranteed Obligations in connection therewith, and (f) to the extentGuarantor lawfully may do so, any and all demands and notices of every kind anddescription with respect to the foregoing or which may be required to be givenby any statute or rule of law and any defense of any kind which it may nowor hereafter have with respect to this Guaranty, or any of the Amended Lease No. 2Documents or the Guaranteed Obligations (other than that the same have been 

 

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discharged in accordancewith the Amended Lease No. 2 Documents).

 

9.                                       **NoImpairment, Etc.**  Theobligations, covenants, agreements and duties of Guarantor under this Guarantyshall not be affected or impaired by any assignment or transfer in whole or inpart of any of the Guaranteed Obligations without notice to Guarantor, or anywaiver by Landlord or any holder of any of the Guaranteed Obligations or by theholders of all of the Guaranteed Obligations of the performance or observanceby Tenant or any other guarantor of any of the agreements, covenants, terms orconditions contained in the Guaranteed Obligations or the Amended Lease No. 2Documents or any indulgence in or the extension of the time for payment byTenant or any other guarantor of any amounts payable under or in connectionwith the Guaranteed Obligations or the Amended Lease No. 2 Documents orany other instrument or agreement relating to the Guaranteed Obligations or ofthe time for performance by Tenant or any other guarantor of any otherobligations under or arising out of any of the foregoing or the extension orrenewal thereof (except that with respect to any extension of time for paymentor performance of any of the Guaranteed Obligations granted by Landlord or anyother holder of such Guaranteed Obligations to Tenant, Guarantor’s obligationsto pay or perform such Guaranteed Obligation shall be subject to the sameextension of time for performance), or the modification or amendment (whethermaterial or otherwise) of any duty, agreement or obligation of Tenant or anyother guarantor set forth in any of the foregoing, or the voluntary orinvoluntary sale or other disposition of all or substantially all of the assetsof Tenant or any other guarantor or insolvency, bankruptcy, or other similarproceedings affecting Tenant or any other guarantor or any assets of Tenant orany such other guarantor, or the release or discharge of Tenant or any suchother guarantor from the performance or observance of any agreement, covenant,term or condition contained in any of the foregoing without the consent of theholders of the Guaranteed Obligations by operation of law, or any other cause,whether similar or dissimilar to the foregoing.

 

10.                                 **Reimbursement,Subrogation, Etc.** Guarantor hereby covenants and agrees that it will not enforce orotherwise exercise any rights of reimbursement, subrogation, contribution orother similar rights against Tenant (or any other person against whom Landlordmay proceed) with respect to the Guaranteed Obligations prior to the payment infull of all amounts owing with respect to the Amended Lease No. 2Documents, and until all indebtedness of Tenant to Landlord shall have beenpaid in full, Guarantor shall not have any right of subrogation, 

 

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and Guarantor waives anydefense it may have based upon any election of remedies by Landlord whichdestroys its subrogation rights or its rights to proceed against Tenant forreimbursement, including, without limitation, any loss of rights Guarantor maysuffer by reason of any rights, powers or remedies of Tenant in connection withany anti-deficiency laws or any other laws limiting, qualifying or dischargingthe indebtedness to Landlord.  Until allobligations of Tenant pursuant to the Amended Lease No. 2 Documents shallhave been paid and satisfied in full, Guarantor further waives any right toenforce any remedy which Landlord now has or may in the future have againstTenant, any other guarantor or any other person and any benefit of, or anyright to participate in, any security whatsoever now or in the future held byLandlord.

 

11.                                 **Defeasance****.**  This Guaranty shallterminate at such time as the Guaranteed Obligations have been paid andperformed in full and all other obligations of Guarantor to Landlord under thisGuaranty have been satisfied in full; provided, however, if atany time, all or any part of any payment applied on account of the GuaranteedObligations is or must be rescinded or returned for any reason whatsoever (including,without limitation, the insolvency, bankruptcy or reorganization of Tenant),this Guaranty, to the extent such payment is or must be rescinded or returned,shall be deemed to have continued in existence notwithstanding any suchtermination.

 

12.                                 **Notices****.**

 

(a)  Any and allnotices, demands, consents, approvals, offers, elections and othercommunications required or permitted under this Guaranty shall be deemedadequately given if in writing and the same shall be delivered either in hand,by telecopier with written acknowledgment of receipt, or by mail or FederalExpress or similar expedited commercial carrier, addressed to the recipient ofthe notice, postpaid and registered or certified with return receipt requested(if by mail), or with all freight charges prepaid (if by Federal Express orsimilar carrier).

 

(b)  All noticesrequired or permitted to be sent hereunder shall be deemed to have been givenfor all purposes of this Guaranty upon the date of acknowledged receipt, in thecase of a notice by telecopier, and, in all other cases, upon the date ofreceipt or refusal, except that whenever under this Guaranty a notice is eitherreceived on a day which is not a Business Day or is required to be delivered onor before a specific day which is not a Business Day, the day of receipt orrequired delivery shall automatically be extended to the next Business Day.

 

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(c)                                  All suchnotices shall be addressed,

 

ifto Landlord to:

 

c/oSenior Housing Properties Trust

400Centre Street

Newton,Massachusetts  02458

Attn:  Mr. David J. Hegarty

[Telecopier No. (617) 796-8349]

 

ifto Guarantor to:

 

Five Star Quality Care, Inc.

400 Centre Street

Newton, Massachusetts  02458

Attn: Mr. Bruce J. Mackey Jr.

[Telecopier No. (617) 796-8385]

 

(d)                                 By notice givenas herein provided, the parties hereto and their respective successors andassigns shall have the right from time to time and at any time during the termof this Guaranty to change their respective addresses effective upon receipt bythe other parties of such notice and each shall have the right to specify asits address any other address within the United States of America.

 

13.                                 **Successorsand Assigns****.**  Whenever in this Guaranty any of the partieshereto is referred to, such reference shall be deemed to include the successorsand assigns of such party, including without limitation the holders, from timeto time, of the Guaranteed Obligations; and all representations, warranties,covenants and agreements by or on behalf of Guarantor which are contained inthis Guaranty shall inure to the benefit of Landlord’s successors and assigns,including without limitation said holders, whether so expressed or not.

 

14.                                 **ApplicableLaw****.**  Except as tomatters regarding the internal affairs of Landlord and issues of or limitationson any personal liability of the shareholders and trustees of Landlord forobligations of Landlord, as to which the laws of the state of Landlord’sorganization shall govern, this Guaranty shall be interpreted, construed,applied and enforced in accordance with the laws of The Commonwealth ofMassachusetts applicable to contracts between residents of Massachusetts whichare to be performed entirely within Massachusetts, regardless of (a) whereany such instrument is executed or delivered; or (b) where any payment orother performance required by any such instrument is made or required to bemade; or (c) where any breach of any provision of any such instrumentoccurs, or any cause of action otherwise accrues; or (d) where any actionor other proceeding 

 

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is instituted or pending; or(e) the nationality, citizenship, domicile, principal place of business,or jurisdiction of organization or domestication of any party; or (f) whetherthe laws of the forum jurisdiction otherwise would apply the laws of ajurisdiction other than The Commonwealth of Massachusetts; or (g) any combinationof the foregoing.

 

## 15.                                 **Disputes**.  Anydisputes, claims or controversies between or among the parties hereto arisingout of or relating to this Guaranty or the transactions contemplated hereby,including disputes, claims or controversies relating to the meaning,interpretation, effect, validity, performance or enforcement of this Guaranty(all of which are referred to as “Disputes”) or relating in any way tosuch a Dispute or Disputes, shall on the demand of any party to such Dispute beresolved through binding and final arbitration in accordance with theCommercial Arbitration Rules (the “Rules”) of the AmericanArbitration Association (“AAA”) then in effect, except as modifiedherein.  For the avoidance of doubt, aDispute shall include a Dispute made derivatively on behalf of one partyagainst another party.

##  

## There shall be threearbitrators.  If there are (a) onlytwo parties to the Dispute, each party shall select one arbitrator withinfifteen days after receipt by respondent of a copy of the demand forarbitration and (b) more than two parties to the Dispute, all claimants,on the one hand, and all respondents, on the other hand, shall each select, bythe vote of a majority of the claimants or the respondents, as the case may be,one arbitrator.  The two party-nominatedarbitrators shall jointly nominate the third and presiding arbitrator withinfifteen days of the nomination of the second arbitrator.  If any arbitrator has not been nominatedwithin the time limit specified herein, then the AAA shall provide a list ofproposed arbitrators in accordance with the Rules, and the arbitrator shall beappointed by the AAA in accordance with a listing, striking and rankingprocedure, with each party having a limited number of strikes, excluding strikesfor cause.  For the avoidance of doubt,the arbitrators appointed by the parties to such Dispute may be affiliates orinterested persons of such parties but the third arbitrator elected by theparty arbitrators or by the AAA shall be unaffiliated with either party.

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## The place of arbitrationshall be Boston, Massachusetts unless otherwise agreed by the parties.

 

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## There shall be only limiteddocumentary discovery of documents directly related to the issues in dispute,as may be ordered by the arbitrators.

##  

## In rendering an award ordecision (the “Arbitration Award”), the arbitrators shall be required tofollow the laws of the Commonwealth of Massachusetts.  Any arbitration proceedings or ArbitrationAward rendered hereunder and the validity, effect and interpretation of thisarbitration agreement shall be governed by the Federal Arbitration Act, 9U.S.C. §1 et seq.  The Arbitration Awardshall be in writing and may, but shall not be required to, briefly state thefindings of fact and conclusions of law on which it is based.

##  

## Except to the extentexpressly provided by this Guaranty or as otherwise agreed between the parties,each party involved in a Dispute shall bear its own costs and expenses(including attorneys’ fees), and the arbitrators shall not render an award thatwould include shifting of any such costs or expenses (including attorneys’fees) or, in a derivative case or class action by a holder of any party, awardany portion of such party’s award to the claimant or the claimant’sattorneys.  Each party (or, if there aremore than two parties to the Dispute, all claimants, on the one hand, and allrespondents, on the other hand, respectively) shall bear the costs and expensesof its (or their) selected arbitrator and the parties (or, if there are morethan two parties to the Dispute, all claimants, on the one hand, and allrespondents, on the other hand) shall equally bear the costs and expenses ofthe third appointed arbitrator.

##  

## The Arbitration Award shallbe final and binding upon the parties thereto and shall be the sole andexclusive remedy between such parties relating to the Dispute, including anyclaims, counterclaims, issues or accounting presented to the arbitrators.  Judgment upon the Arbitration Award may beentered in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to anycourt of competent jurisdiction may be made in connection with any question oflaw arising in the course of arbitration or with respect to any award madeexcept for actions relating to enforcement of this agreement to arbitrate orany arbitral award issued hereunder and except for actions seeking interim orother provisional relief in aid of arbitration proceedings in any court of competentjurisdiction.

##  

## Any monetary award shall be made and payable in U.S.dollars free of any tax, deduction or offset. The party against which the Arbitration Award assesses a monetaryobligation shall pay that obligation on or before the thirtieth day followingthe 

 

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## date of the Arbitration Award or such other date as the ArbitrationAward may provide.

##  

16.                                 **Modificationof Agreement****.**  No modification or waiver of any provision ofthis Guaranty, nor any consent to any departure by Guarantor therefrom, shallin any event be effective unless the same shall be in writing and signed byLandlord, and such modification, waiver or consent shall be effective only inthe specific instances and for the purpose for which given.  No notice to or demand on Guarantor in anycase shall entitle Guarantor to any other or further notice or demand in thesame, similar or other circumstances.  ThisGuaranty may not be amended except by an instrument in writing executed by oron behalf of the party against whom enforcement of such amendment is sought.

 

17.                                 **Waiverof Rights by Landlord****.**  Neither any failure nor any delay on Landlord’spart in exercising any right, power or privilege under this Guaranty shalloperate as a waiver thereof, nor shall a single or partial exercise thereofpreclude any other or further exercise or the exercise of any other right,power or privilege.

 

18.                                 **Severability****.**  In case any one or more of the provisionscontained in this Guaranty should be invalid, illegal or unenforceable in anyrespect, the validity, legality and enforceability of the remaining provisionscontained herein shall not in any way be affected or impaired thereby, but thisGuaranty shall be reformed and construed and enforced to the maximum extentpermitted by applicable law.

 

19.                                 **EntireContract****.**  This Guaranty constitutes the entireagreement between the parties hereto with respect to the subject matter hereofand shall supersede and take the place of any other instruments purporting tobe an agreement of the parties hereto relating to the subject matter hereof.

 

20.                                 **Headings;Counterparts****.**  Headings in this Guaranty are for purposes ofreference only and shall not limit or otherwise affect the meaning hereof.  This Guaranty may be executed in any numberof counterparts, each of which shall be an original, but all of which togethershall constitute one instrument, and in pleading or proving any provision ofthis Guaranty, it shall not be necessary to produce more than one of such counterparts.

 

21.                                 **RemediesCumulative****.**  No remedy herein conferred upon Landlord isintended to be exclusive of any other remedy, and each and every remedy shallbe cumulative and shall be in addition to every other remedy given hereunder ornow or 

 

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hereafter existing at law orin equity or by statute or otherwise.

 

22.                                 **NON-LIABILITYOF TRUSTEES****.**  THE DECLARATIONS OF TRUST ESTABLISHING CERTAINENTITIES COMPRISING THE LANDLORD, COPIES OF WHICH, TOGETHER WITH ALL AMENDMENTSTHERETO (COLLECTIVELY, THE “DECLARATIONS”), ARE DULY FILED WITH THEDEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THATTHE NAMES OF SUCH ENTITIES REFER TO THE TRUSTEES UNDER SUCH DECLARATIONSCOLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NOTRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH ENTITIES SHALL BE HELDTO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, ORCLAIM AGAINST, SUCH ENTITIES.  ALLPERSONS DEALING WITH SUCH ENTITIES, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETSOF SUCH ENTITIES FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANYOBLIGATION.

 

23.                                 **OriginalGuarantees****.**  Guarantor and Landlord acknowledge and agreethat this Guaranty amends and restates the Original Guarantees in theirentirety with respect to the Guaranteed Obligations and that this Guarantyshall govern the rights and obligations of Guarantor with respect to theGuaranteed Obligations from and after the date of this Guaranty.  Notwithstanding the foregoing, the OriginalGuarantees shall continue to govern the rights and obligations of Guarantorwith respect to the “Guaranteed Obligations” (as defined in the OriginalGuarantees) prior to the date of this Guaranty and nothing contained in thisGuaranty shall operate to release Guarantor from any such rights orobligations.

 

**[Remainder of page intentionally left blank.]**

 

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**WITNESS** the execution hereof under seal as of the dateabove first written.

 
|   | **FIVE  STAR QUALITY CARE, INC.** |
|--------|-----------------------------------|
|   |                              |
|   |                              |   |
|   | By:                               | /s/ Bruce J. Mackey Jr. |
|   |                              | Bruce J. Mackey Jr. |
|   |                              | President |

 

LANDLORDHEREBY CONSENTS TO THE EXECUTION AND DELIVERY OF THIS GUARANTY BY GUARANTOR ANDFURTHER ACKNOWLEDGES AND AGREES TO THE PROVISIONS OF SECTION 23 OF THISGUARANTY.

 
|   | **CCC  FINANCING I TRUST,**          |
|--------|--------------------------------------|
|   | **CCC  OF KENTUCKY TRUST,**          |
|   | **CCC  PUEBLO NORTE TRUST,**         |
|   | **CCC  INVESTMENTS I, L.L.C.,**      |
|   | **CCDE  SENIOR LIVING LLC,**         |
|   | **CCOP  SENIOR LIVING LLC,**         |
|   | **O.F.C.  CORPORATION,**             |
|   | **SNH  CHS PROPERTIES TRUST,**       |
|   | **SNH  SOMERFORD PROPERTIES TRUST,** |
|   | **SNH/LTA  PROPERTIES GA LLC,**      |
|   | **SNH/LTA  PROPERTIES TRUST,**       |
|   | **SPTIHS  PROPERTIES TRUST,**and     |
|   | **SPTMNR  PROPERTIES TRUST**         |
|   | **HRES1  PROPERTIES TRUST**          |
|   | ** **                           |
|   | ** **                           | ** ** |
|   | By:                                  | /s/ David J.  Hegarty |
|   |                                 | David  J. Hegarty |
|   |                                 | President  of each of the foregoing entities |
|   |                                 |
|   |                                 |
|   | **CCC  FINANCING LIMITED, L.P.**     |
|   | ** **                           |
|   | By:                                  | CCC  RETIREMENT TRUST, |
|   |                                 | its  General Partner |
|   |                                 |   |
|   |                                 |   |   |
|   |                                 | By: | /s/ David J.  Hegarty |
|   |                                 |   | David  J. Hegarty |
|   |                                 |   | President |

 

[SIGNATURE PAGE TOAMENDED AND RESTATED GUARANTY AGREEMENT (LEASE NO. 2)]

 

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|   | **CCC  RETIREMENT COMMUNITIES II, L.P.**      |
|--------|-----------------------------------------------|
|   |                                          |   |   |
|   | By:                                           | CRESTLINE VENTURES LLC, |
|   |                                          | its  General Partner |
|   |                                          |   |   |
|   |                                          |   |   |
|   |                                          | By: | /s/ David J.  Hegarty |
|   |                                          |   | David  J. Hegarty |
|   |                                          |   | President |
|   |                                          |   |   |
|   |                                          |   |   |
|   | **LEISURE  PARK VENTURE LIMITED PARTNERSHIP** |
|   | ** **                                    |   |   |
|   | By:                                           | CCC  LEISURE PARK CORPORATION, |
|   | ** **                                    | its  General Partner |
|   | ** **                                    |   |   |
|   | ** **                                    |   |   |
|   | ** **                                    | By: | /s/  David J. Hegarty |
|   | ** **                                    |   | David  J. Hegarty |
|   | ** **                                    |   | President |

 

[SIGNATURE PAGE TOAMENDED AND RESTATED SUBTENANT AGREEMENT (LEASE NO. 2)]

 

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