**Exhibit 10.13**

 

**AMENDEDAND RESTATED GUARANTY AGREEMENT**

 

**THISAMENDED 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 SNH FM FINANCINGLLC, a Delaware limited liability company, SNH FM FINANCING TRUST, a Marylandreal estate investment trust, and ELLICOTT CITY LAND I, LLC, a Delaware limitedliability company, collectively as landlord (“Landlord”).

 

**W****ITNESSETH :**

 

**WHEREAS,** Guarantor andcertain 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 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 of the paymentand performance 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 FVE FM Financing, Inc. (as the same may be amended, modifiedor supplemented from time to time, the “FM Financing Lease”);

 

**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 FM Financing Lease.  The FM Financing Lease and the IncidentalDocuments are hereinafter collectively referred to as the “FM FinancingLease 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 FM Financing Lease Documents orrelating thereto, whether now existing or hereafter arising, and including,without limitation, the payment of the full amount of the Rent payable underthe FM Financing Lease.

 

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

 

3.1                                 **Incorporationof Representations and Warranties****. **The representations and warranties of Tenant and its Affiliated Personsset forth in the FM Financing Lease Documents are true and correct on and as ofthe date hereof in all material respects.

 

3.2                                 **Performanceof 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 FM Financing Lease Documents.

 

3.3                                 **Validityof Agreement****.**  Guarantor has duly and validly executed anddelivered this Guaranty; this Guaranty constitutes the legal, valid and bindingobligation of Guarantor, enforceable against Guarantor in accordance with itsterms, except as the enforceability thereof may be subject to bankruptcy,fraudulent conveyance, insolvency, reorganization, moratorium and other lawsrelating to or affecting creditors’ rights generally and subject to generalequitable principles, regardless of whether enforceability is considered in aproceeding at law or in equity; and the execution, delivery and performance ofthis Guaranty have been duly authorized by all requisite action of Guarantorand such execution, delivery and performance by Guarantor will not result inany breach of the terms, conditions or provisions of, or conflict with orconstitute a default under, or result in the creation of any lien, charge orencumbrance upon any of the property or assets of Guarantor pursuant to theterms of, any indenture, mortgage, deed of trust, note, other evidence ofindebtedness, agreement or other instrument to which it may be a party or bywhich it or any of its property or assets may be bound, or violate any 

 

2

----

 

provision of law, or any applicable order,writ, injunction, judgment or decree of any court or any order or other publicregulation of any governmental commission, bureau or administrative agency.

 

3.4                                 **Paymentof 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 (including reasonableattorneys’ fees and disbursements) incurred or expended by Landlord inconnection 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 FM Financing Lease Documents.

 

3.7                                 **Booksand 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 during such fiscal year, asshall be required in accordance with generally accepted accounting principles,consistently applied, in connection with its business.  Guarantor shall permit access by Landlord andits agents to the books and records maintained by Guarantor during normalbusiness hours and upon reasonable notice. Any proprietary information obtained by Landlord with respect toGuarantor pursuant to the provisions of this Guaranty shall be treated asconfidential, except that such information may be disclosed or used, subject toappropriate confidentiality safeguards, pursuant to any court order or in anylitigation between the parties and except further that Landlord may disclosesuch information to its prospective lenders, provided that Landlord shalldirect such lenders to maintain such information as confidential.

 

3.8                                 **Taxes,Etc****.**  Guarantorshall pay and discharge promptly as they become due and payable all taxes,assessments and other governmental charges or levies imposed upon Guarantor 

 

3

----

 

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                                 **LegalExistence of Guarantor****.**  Guarantor shall do or cause to be done allthings necessary to preserve and keep in full force and effect its legalexistence.

 

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 to its properties andbusiness against loss or damage of the kinds customarily insured against byowners of established reputation engaged in the same or similar businesses andsimilarly situated, in such amounts and by such methods as shall be customaryfor such owners and deemed adequate by Guarantor.

 

3.12                           **NoChange 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 FM Financing Lease Document, or otherwise, andthat the Guaranteed Obligations which are performance obligations shall befully performed at the times and in the manner such performance is required bythe FM Financing Lease 

 

4

----

 

Documents. With respect to the Guaranteed Obligations which are monetaryobligations, this guarantee is a guarantee of payment and not of collectabilityand 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 FM Financing Lease Documents) or, in the case of non-monetaryobligations, perform or cause to be performed such obligations in accordancewith the FM Financing Lease 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 the FMFinancing Lease Documents), or if any other moneys included in the Guaranteed Obligationshave become unrecoverable from Tenant by operation of law or for any otherreason, including, without limitation, the invalidity or irregularity in wholeor in part of any Guaranteed Obligation or of any Transaction Document or anylimitation on the liability of Tenant thereunder not contemplated by the FMFinancing Lease Documents or any limitation on the method or terms of paymentthereunder which may now or hereafter be caused or imposed in any mannerwhatsoever, the guarantees contained in this Guaranty shall nevertheless remainin full force and effect and shall be binding upon Guarantor to the same extentas if Guarantor at all times had been the principal debtor on all suchGuaranteed Obligations.

 

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.

 

5

----

 

8.                                       **Consentsand Waivers, Etc.** Guarantor hereby acknowledges receipt of correct and complete copies ofeach of the FM Financing Lease Documents, and consents to all of the terms andprovisions thereof, as the same may be from time to time hereafter amended orchanged in accordance with the terms and conditions thereof, and, except asotherwise provided herein, to the maximum extent permitted by applicable law,waives (a) presentment, demand for payment, and protest of nonpayment, ofany principal of or interest on any of the Guaranteed Obligations, (b) noticeof acceptance of this Guaranty and of diligence, presentment, demand andprotest, (c) notice of any default hereunder and any default, breach ornonperformance or Event of Default under any of the Guaranteed Obligations orthe FM Financing Lease Documents, (d) notice of the terms, time and placeof any private or public sale of any collateral held as security for theGuaranteed Obligations, (e) demand for performance or observance of, andany enforcement of any provision of, or any pursuit or exhaustion of rights orremedies against Tenant or any other guarantor of the Guaranteed Obligations,under or pursuant to the FM Financing Lease Documents, or any agreementdirectly or indirectly relating thereto and any requirements of diligence orpromptness on the part of the holders of the Guaranteed Obligations inconnection therewith, and (f) to the extent Guarantor lawfully may do so,any and all demands and notices of every kind and description with respect tothe foregoing or which may be required to be given by any statute or rule oflaw and any defense of any kind which it may now or hereafter have with respectto this Guaranty, or any of the FM Financing Lease Documents or the GuaranteedObligations (other than that the same have been discharged in accordance withthe FM Financing Lease 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 FM Financing LeaseDocuments 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 FM Financing Lease Documents or anyother instrument or agreement relating to the Guaranteed Obligations or of thetime for performance by Tenant or any other guarantor of any other obligationsunder or arising out of any of the foregoing or the extension or renewal 

 

6

----

 

thereof (except that with respect to any extensionof time for payment or performance of any of the Guaranteed Obligations grantedby Landlord or any other holder of such Guaranteed Obligations to Tenant,Guarantor’s obligations to pay or perform such Guaranteed Obligation shall besubject to the same extension of time for performance), or the modification oramendment (whether material or otherwise) of any duty, agreement or obligationof Tenant or any other guarantor set forth in any of the foregoing, or thevoluntary or involuntary sale or other disposition of all or substantially allof the assets of Tenant or any other guarantor or insolvency, bankruptcy, orother similar proceedings affecting Tenant or any other guarantor or any assetsof Tenant or any such other guarantor, or the release or discharge of Tenant orany such other guarantor from the performance or observance of any agreement,covenant, term or condition contained in any of the foregoing without theconsent of the holders of the Guaranteed Obligations by operation of law, orany 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 FM Financing Lease Documents, anduntil all indebtedness of Tenant to Landlord shall have been paid in full,Guarantor shall not have any right of subrogation, 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 FM Financing Lease Documents shall havebeen paid and satisfied in full, Guarantor further waives any right to enforceany remedy which Landlord now has or may in the future have against Tenant, anyother guarantor or any other person and any benefit of, or any right toparticipate in, any security whatsoever now or in the future held by Landlord.

 

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 

 

7

----

 

of the Guaranteed Obligations is or must berescinded or returned for any reason whatsoever (including, without limitation,the insolvency, bankruptcy or reorganization of Tenant), this Guaranty, to theextent such payment is or must be rescinded or returned, shall be deemed tohave continued in existence notwithstanding any such termination.

 

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.

 

(c)                                  All such noticesshall be addressed,

 

if to Landlord to:

 

c/o Senior HousingProperties Trust

400 Centre Street

Newton, Massachusetts  02458

Attn:  Mr. David J. Hegarty

[Telecopier No. (617) 796-8349]

 

if to 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 

 

8

----

 

from time to time and at any time during the term ofthis 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 is instituted or pending; or (e) the nationality,citizenship, domicile, principal place of business, or jurisdiction oforganization or domestication of any party; or (f) whether the laws of theforum jurisdiction otherwise would apply the laws of a jurisdiction other thanThe Commonwealth of Massachusetts; or (g) any combination of 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 arereferred to as “Disputes”) or relating in any way to such a Dispute orDisputes, shall on the demand of any party to such Dispute be resolved throughbinding and final arbitration in accordance with the Commercial Arbitration Rules (the“Rules”) of the American Arbitration Association (“AAA”) then ineffect, except as modified herein.  Forthe avoidance of doubt, a Dispute shall 

 

9

----

 

## includea Dispute made derivatively on behalf of one party against another party.

##  

## There shall be three arbitrators.  If there are (a) only two parties to theDispute, each party shall select one arbitrator within fifteen days afterreceipt by respondent of a copy of the demand for arbitration and (b) morethan two parties to the Dispute, all claimants, on the one hand, and allrespondents, on the other hand, shall each select, by the vote of a majority ofthe claimants or the respondents, as the case may be, one arbitrator.  The two party-nominated arbitrators shalljointly nominate the third and presiding arbitrator within fifteen days of thenomination of the second arbitrator.  Ifany arbitrator has not been nominated within the time limit specified herein,then the AAA shall provide a list of proposed arbitrators in accordance withthe Rules, and the arbitrator shall be appointed by the AAA in accordance witha listing, striking and ranking procedure, with each party having a limited numberof strikes, excluding strikes for cause. For the avoidance of doubt, the arbitrators appointed by the parties tosuch Dispute may be affiliates or interested persons of such parties but thethird arbitrator elected by the party arbitrators or by the AAA shall beunaffiliated with either party.

##  

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

##  

## There shall be only limited documentary discovery ofdocuments directly related to the issues in dispute, as may be ordered by thearbitrators.

##  

## In rendering an award or decision (the “ArbitrationAward”), the arbitrators shall be required to follow the laws of theCommonwealth of Massachusetts.  Anyarbitration proceedings or Arbitration Award rendered hereunder and thevalidity, effect and interpretation of this arbitration agreement shall begoverned by the Federal Arbitration Act, 9 U.S.C. §1 et seq.  The Arbitration Award shall be in writing andmay, but shall not be required to, briefly state the findings of fact andconclusions of law on which it is based.

##  

## Except to the extent expressly provided by thisGuaranty or as otherwise agreed between the parties, each party involved in aDispute shall bear its own costs and expenses (including attorneys’ fees), andthe arbitrators shall not render an award that would include shifting of anysuch costs or expenses (including attorneys’ fees) or, in a derivative case orclass action by a holder of any party, award any portion of such 

 

10

----

 

## party’s award to the claimant or the claimant’s attorneys.  Each party (or, if there are more than twoparties to the Dispute, all claimants, on the one hand, and all respondents, onthe other hand, respectively) shall bear the costs and expenses of its (ortheir) selected arbitrator and the parties (or, if there are more than twoparties to the Dispute, all claimants, on the one hand, and all respondents, onthe other hand) shall equally bear the costs and expenses of the thirdappointed arbitrator.

##  

## The Arbitration Award shall be final and bindingupon the parties thereto and shall be the sole and exclusive remedy betweensuch parties relating to the Dispute, including any claims, 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 ofcompetent jurisdiction.

##  

## Anymonetary award shall be made and payable in U.S. dollars free of any tax,deduction or offset.  The party againstwhich the Arbitration Award assesses a monetary obligation shall pay that obligationon or before the thirtieth day following the date of the Arbitration Award orsuch other date as the Arbitration Award 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. This Guaranty may not be amended except by an instrument in writingexecuted by or on behalf of the party against whom enforcement of suchamendment 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 

 

11

----

 

other or further exercise or the exercise of anyother 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 of thisGuaranty, it shall not be necessary to produce more than one of suchcounterparts.

 

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

 

22.                                 **NON-LIABILITYOF TRUSTEES****.**  THE DECLARATION OF TRUST ESTABLISHING SNH FMFINANCING TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO(COLLECTIVELY, THE “DECLARATION”), IS DULY FILED WITH THE DEPARTMENT OFASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME “SNHFM FINANCING TRUST” REFERS TO THE TRUSTEES UNDER SUCH DECLARATION COLLECTIVELYAS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,SHAREHOLDER, EMPLOYEE OR AGENT OF SNH FM FINANCING TRUST SHALL BE HELD TO ANYPERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIMAGAINST, SNH FM FINANCING TRUST.  ALLPERSONS DEALING WITH SNH FM FINANCING TRUST, IN ANY WAY, SHALL LOOK ONLY TO THEASSETS OF SNH FM FINANCING TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCEOF ANY OBLIGATION.

 

23.                                 **Original Guarantees****.**  Guarantor and Landlord acknowledge and agreethat this Guaranty amends and restates the Original Guarantees in theirentirety with respect to the 

 

12

----

 

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.

 

**[Remainderof page intentionally left blank.]**

 

13

----

 

**WITNESS** the executionhereof under seal as of the date above first written.

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

 

LANDLORD HEREBY CONSENTS TO THE EXECUTION ANDDELIVERY OF THIS GUARANTY BY GUARANTOR AND FURTHER ACKNOWLEDGES AND AGREES TOTHE PROVISIONS OF SECTION 23 OF THIS GUARANTY.

 
| **SNH FM FINANCING LLC**      |
|-------------------------------|
|                          |   |
|                          |   |
| By:                           | /s/ David J. Hegarty |   |
|                          | David J. Hegarty |
|                          | President |
|                          |   |
|                          |   |
| **SNH FM FINANCING TRUST**    |
|                          |   |
|                          |   |
| By:                           | /s/ David J. Hegarty |   |
|                          | David J. Hegarty |
|                          | President |
|                          |   |
|                          |   |
| **ELLICOTT CITY LAND I, LLC** |
|                          |   |
|                          |   |
| By:                           | /s/ David J. Hegarty |   |
|                          | David J. Hegarty |
|                          | President |

 

[SIGNATURE PAGE TOAMENDED AND RESTATED GUARANTY AGREEMENT]

 

----