Exhibit 10.4


 


AMENDED
AND RESTATED GUARANTY AGREEMENT


 


(LEASE
NO. 2)


 


THIS
AMENDED AND RESTATED GUARANTY AGREEMENT (this “Agreement”)
is entered into as of June 30, 2008 by FIVE
STAR QUALITY CARE, INC., a Maryland corporation (the “Guarantor”),
for the benefit of CCC FINANCING I TRUST,
a Maryland business trust, CCC OF KENTUCKY
TRUST, a Maryland business trust, CCC
OHIO HEALTHCARE TRUST, a Maryland business trust, CCC PUEBLO NORTE TRUST, a Maryland business
trust, CCC INVESTMENTS I, L.L.C.,
a Delaware limited liability company, CCCP
SENIOR LIVING LLC, a Delaware limited liability company, CCDE SENIOR LIVING LLC, a Delaware limited
liability company, CCFL SENIOR LIVING LLC,
a Delaware limited liability company, CCOP
SENIOR LIVING LLC, a Delaware limited liability company, CCSL SENIOR LIVING LLC, a Delaware limited
liability company, LTJ SENIOR COMMUNITIES LLC,
a Delaware limited liability company, CCC
FINANCING LIMITED, L.P., a Delaware limited partnership, CCC RETIREMENT COMMUNITIES II, L.P., a
Delaware partnership, HRES1 PROPERTIES TRUST,
a Maryland real estate investment trust, LEISURE
PARK VENTURE LIMITED PARTNERSHIP, a Delaware limited partnership,
and PANTHER HOLDINGS LEVEL I, L.P.,
a Delaware limited partnership (together with their successors and assigns,
collectively, “Landlord”).


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS,
certain entities comprising Landlord and FS Tenant Holding Company Trust, a
Maryland business trust, and FS Tenant Pool III Trust, a Maryland business
trust (collectively, “Sunrise Tenant”) are parties to that certain
Amended Master Lease Agreement, dated as of January 11, 2002, as the same
has been amended to date (as so amended, the “Original Sunrise Lease”);
and


 


WHEREAS, certain other
entities comprising Landlord and FS Commonwealth LLC, a Maryland limited liability
company, and FS Patriot LLC, a Maryland limited liability company (collectively, “Rehab Tenant”,
together with Sunrise Tenant, collectively, “Tenant”) are parties to
that certain Amended and Restated Master Lease Agreement, dated as of October 1,
2006, as the same has been amended to date (as so amended, the “Original 


 

















 


Rehabilitation Hospital
Lease”, and together with the Original Sunrise Lease, collectively, the “Original
Leases”); and


 


WHEREAS, the Guarantor executed that certain Guaranty Agreement, dated as of January 11,
2002 for the benefit of certain entities comprising Landlord in connection with
the Original Sunrise Lease (the “Original Sunrise Guaranty”); and


 


WHEREAS, the Guarantor executed that certain Amended and Restated Guaranty
Agreement, dated as of October 1, 2006 for the benefit of certain entities
comprising Landlord in connection with the Original Rehabilitation Hospital Lease (the “Original Rehab
Guaranty” and together with the Original Sunrise Guaranty, the “Original
Guarantees”); and


 


WHEREAS, Landlord and
Tenant are amending, restating and consolidating the Original Leases into a
single lease which shall
be named the Amended and Restated Master Lease Agreement(Lease No. 2),
(the “Amended Lease No. 2”);


 


WHEREAS, the Guarantor and Landlord now wish to amend, restate and consolidate the
Original Guarantees into one guaranty, pursuant to which the Guarantor
guarantees all of the payment and performance obligations of Tenant with
respect to the Amended Lease No. 2;


 


NOW,
THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:


 


1.             Certain Terms. 
Capitalized terms used and not otherwise defined in this Agreement shall
have the meanings ascribed to such terms in the Amended Lease No. 2.  The Amended Lease No. 2 and the
Incidental Documents are herein collectively referred to as the “Transaction
Documents.”


 


2.             Guaranteed Obligations. 
For purposes of this Agreement, the term “Guaranteed Obligations”
shall mean the payment and performance of each and every obligation of Tenant
to Landlord under the Transaction Documents or relating thereto, whether now
existing or hereafter arising, and including, without limitation, the payment
of the full amount of the Rent payable under the Amended Lease No. 2.


 


3.             Representations and Covenants. 
The Guarantor represents, warrants, covenants, and agrees that:


 


2

















 


3.1  Incorporation
of Representations and Warranties.  The representations and warranties of Tenant
and its Affiliated Persons set forth in the Transaction Documents are true and
correct on and as of the date hereof in all material respects.


 


3.2  Performance
of Covenants and Agreements. 
The Guarantor hereby agrees to take all lawful action in its power to
cause Tenant duly and punctually to perform all of the covenants and agreements
set forth in the Transaction Documents.


 


3.3   Validity of Agreement.  The Guarantor has duly and validly executed
and delivered this Agreement; this Agreement constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as the enforceability thereof may be subject
to bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and subject
to general equitable principles, regardless of whether enforceability is
considered in a proceeding at law or in equity; and the execution, delivery and
performance of this Agreement have been duly authorized by all requisite action
of the Guarantor and such execution, delivery and performance by the Guarantor
will not result in any breach of the terms, conditions or provisions of, or
conflict with or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any of the property or assets of the Guarantor
pursuant to the terms of, any indenture, mortgage, deed of trust, note, other
evidence of indebtedness, agreement or other instrument to which it may be a
party or by which it or any of its property or assets may be bound, or violate
any provision of law, or any applicable order, writ, injunction, judgment or
decree of any court or any order or other public regulation of any governmental
commission, bureau or administrative agency.


 


3.4  Payment
of Expenses.  The
Guarantor agrees, as principal obligor and not as guarantor only, to pay to
Landlord forthwith, upon demand, in immediately available federal funds, all
costs and expenses (including reasonable attorneys’ fees and disbursements)
incurred or expended by Landlord in connection with the enforcement of this
Agreement, together with interest on amounts recoverable under this Agreement
from the time such amounts become due until payment at the Overdue Rate.  The Guarantor’s covenants and agreements set
forth in this Section 3.4 shall survive the termination of this
Agreement.


 


3.5   Notices.  The Guarantor shall promptly give notice to
Landlord of any event known to it which might 


 


3

















 


reasonably result in a
material adverse change in its financial condition.


 


3.6  Reports.  The Guarantor shall promptly provide to
Landlord each of the financial reports, certificates and other documents
required of it under the Transaction Documents.


 


3.7  Books
and Records.  The
Guarantor shall at all times keep proper books of record and account in which
full, true and correct entries shall be made of its transactions in accordance
with generally accepted accounting principles and shall set aside on its books
from its earnings for each fiscal year all such proper reserves, including
reserves for depreciation, depletion, obsolescence and amortization of its
properties during such fiscal year, as shall be required in accordance with
generally accepted accounting principles, consistently applied, in connection
with its business.  The Guarantor shall permit
access by Landlord and their agents to the books and records maintained by the
Guarantor during normal business hours and upon reasonable notice.  Any proprietary information obtained by
Landlord with respect to the Guarantor pursuant to the provisions of this
Agreement shall be treated as confidential, except that such information may be
disclosed or used, subject to appropriate confidentiality safeguards, pursuant
to any court order or in any litigation between the parties and except further
that Landlord may disclose such information to its prospective lenders,
provided that Landlord shall direct such lenders to maintain such information
as confidential.


 


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


 


4

















 


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


 


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


 


3.11  Insurance.  The Guarantor shall maintain, with
financially sound and reputable insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily insured against by
owners of established reputation engaged in the same or similar businesses and
similarly situated, in such amounts and by such methods as shall be customary
for such owners and deemed adequate by the Guarantor.


 


3.12  No Change in Control.  The Guarantor shall not permit the occurrence
of any direct or indirect Change in Control of the Entities comprising Tenant
or the Guarantor.


 


4.             Guarantee. 
The Guarantor hereby unconditionally guarantees that the Guaranteed
Obligations which are monetary obligations shall be paid in full when due and
payable, whether upon demand, at the stated or accelerated maturity thereof
pursuant to any Transaction Document, or otherwise, and that the Guaranteed
Obligations which are performance obligations shall be fully performed at the
times and in the manner such performance is required by the Transaction
Documents.  With respect to the
Guaranteed Obligations which are monetary obligations, this guarantee is a
guarantee of payment and not of collectibility and is absolute and in no way
conditional or contingent.  In case any
part of the Guaranteed Obligations shall not have been paid when due and
payable or performed at the time performance is required, the Guarantor shall,
in the case of monetary obligations, within five (5) Business Days after
receipt of notice from Landlord, pay or cause to be paid to Landlord the amount
thereof as is then due and payable and unpaid (including interest and other
charges, if any, due thereon through the date of payment in accordance with the
applicable provisions of the Transaction Documents) or, in the case of
nonmonetary obligations, perform or cause to be 


 


5

















 


performed such obligations in accordance with the
Transaction Documents.


 


5.             Set-Off.  The Guarantor hereby authorizes Landlord, at any time
and without notice to set off the whole or any portion or portions of any or
all sums credited by or due from Landlord to it against amounts payable under
this Agreement.  Landlord shall promptly
notify the Guarantor of any such set-off made by Landlord and the application
made by Landlord of the proceeds thereof.


 


6.             Unenforceability of
Guaranteed Obligations, Etc.  If Tenant is
for any reason under no legal obligation to discharge any of the Guaranteed
Obligations (other than because the same have been previously discharged in
accordance with the terms of the Transaction Documents), or if any other moneys
included in the Guaranteed Obligations have become unrecoverable from Tenant by
operation of law or for any other reason, including, without limitation, the
invalidity or irregularity in whole or in part of any Guaranteed Obligation or
of any Transaction Document or any limitation on the liability of Tenant
thereunder not contemplated by the Transaction Documents or any limitation on
the method or terms of payment thereunder which may now or hereafter be caused
or imposed in any manner whatsoever, the guarantees contained in this Agreement
shall nevertheless remain in full force and effect and shall be binding upon
the Guarantor to the same extent as if the Guarantor at all times had been the
principal debtor on all such Guaranteed Obligations.


 


7.             Additional Guarantees. 
This Agreement shall be in addition to any other guarantee or other
security for the Guaranteed Obligations and it shall not be prejudiced or
rendered unenforceable by the invalidity of any such other guarantee or security
or by any waiver, amendment, release or modification thereof.


 


8.             Consents and Waivers,
Etc.  The Guarantor hereby acknowledges receipt of
correct and complete copies of each of the Transaction Documents, and consents
to all of the terms and provisions thereof, as the same may be from time to
time hereafter amended or changed in accordance with the terms and conditions
thereof, and, except as otherwise provided herein, to the maximum extent
permitted by applicable law, waives (a) presentment, demand for payment,
and protest of nonpayment, of any principal of or interest on any of the
Guaranteed Obligations, (b) notice of acceptance of this Agreement and of
diligence, presentment, demand and protest, (c) notice of any default
hereunder and any default, breach or nonperformance or 


 


6

















 


Event of Default under any of the Guaranteed
Obligations or the Transaction Documents, (d) notice of the terms, time
and place of any private or public sale of any collateral held as security for
the Guaranteed Obligations, (e) demand for performance or observance of,
and any enforcement of any provision of, or any pursuit or exhaustion of rights
or remedies against Tenant or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Transaction Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) to the extent the Guarantor lawfully may do
so, any and all demands and notices of every kind and description with respect
to the foregoing or which may be required to be given by any statute or rule of
law and any defense of any kind which it may now or hereafter have with respect
to this Agreement, or any of the Transaction Documents or the Guaranteed
Obligations (other than that the same have been discharged in accordance with
the Transaction Documents).


 


9.             No Impairment, Etc. 
The obligations, covenants, agreements and duties of the Guarantor under
this Agreement shall not be affected or impaired by any assignment or transfer
in whole or in part of any of the Guaranteed Obligations without notice to the
Guarantor, or any waiver by Landlord or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by Tenant or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Guaranteed
Obligations or the Transaction Documents or any indulgence in or the extension
of the time for payment by Tenant or any other guarantor of any amounts payable
under or in connection with the Guaranteed Obligations or the Transaction
Documents or any other instrument or agreement relating to the Guaranteed
Obligations or of the time for performance by Tenant or any other guarantor of
any other obligations under or arising out of any of the foregoing or the
extension or renewal thereof (except that with respect to any extension of time
for payment or performance of any of the Guaranteed Obligations granted by
Landlord or any other holder of such Guaranteed Obligations to Tenant, the
Guarantor’s obligations to pay or perform such Guaranteed Obligation shall be
subject to the same extension of time for performance), or the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of Tenant or any other guarantor set forth in any of the foregoing, or the
voluntary or involuntary sale or other disposition of all or substantially all
the assets of Tenant or any other guarantor or insolvency, bankruptcy, or other
similar proceedings affecting 


 


7

















 


Tenant or any other guarantor or any assets of Tenant
or any such other guarantor, or the release or discharge of Tenant or any such
other guarantor from the performance or observance of any agreement, covenant,
term or condition contained in any of the foregoing without the consent of the
holders of the Guaranteed Obligations by operation of law, or any other cause,
whether similar or dissimilar to the foregoing.


 


10.          Reimbursement,
Subrogation, Etc.  The Guarantor hereby covenants
and agrees that it will not enforce or otherwise exercise any rights of
reimbursement, subrogation, contribution or other similar rights against Tenant
(or any other person against whom Landlord may proceed) with respect to the
Guaranteed Obligations prior to the payment in full of all amounts owing with
respect to the Amended Lease No. 2, and until all indebtedness of Tenant to
Landlord shall have been paid in full, the Guarantor shall not have any right
of subrogation, and the Guarantor waives any defense it may have based upon any
election of remedies by Landlord which destroys its subrogation rights or its
rights to proceed against Tenant for reimbursement, including, without
limitation, any loss of rights the Guarantor may suffer by reason of any
rights, powers or remedies of Tenant in connection with any anti-deficiency
laws or any other laws limiting, qualifying or discharging the indebtedness to
Landlord.  Until all obligations of
Tenant pursuant to the Transaction Documents shall have been paid and satisfied
in full, the Guarantor further waives any right to enforce any remedy which
Landlord now has or may in the future have against Tenant, any other guarantor
or any other person and any benefit of, or any right to participate in, any
security whatsoever now or in the future held by Landlord.


 


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


 


12.          Notices.  (a)  Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately 


 


8

















 


given if in writing and the same shall be delivered
either in hand, by telecopier with written acknowledgment of receipt, or by
mail or Federal Express or similar expedited commercial carrier, addressed to
the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).


 


(b)  All notices required or permitted to be sent
hereunder shall be deemed to have been given for all purposes of this Agreement
upon the date of acknowledged receipt, in the case of a notice by telecopier,
and, in all other cases, upon the date of receipt or refusal, except that whenever
under this Agreement a notice is either received on a day which is not a
Business Day or is required to be delivered on or before a specific day which
is not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.


 


(c)  All such notices shall
be addressed,


 


if to
Landlord:


 


c/o
Senior Housing Properties Trust


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. David J. Hegarty


[Telecopier
No. (617) 796-8349]


 


if to
the Guarantor to:


 


c/o 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 given as herein provided, the parties
hereto and their respective successors and assigns shall have the right from
time to time and at any time during the term of this Agreement to change their
respective addresses effective upon receipt by the other parties of such notice
and each shall have the right to specify as its address any other address
within the United States of America.


 


13.          Successors and Assigns. 
Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, including without limitation the holders, from time to time, of the
Guaranteed Obligations; and all representations, warranties, 


 


9

















 


covenants and agreements by or on behalf of the
Guarantor which are contained in this Agreement shall inure to the benefit of
Landlord’s successors and assigns, including without limitation said holders,
whether so expressed or not.


 


14.          Applicable Law. 
Except as to matters regarding the internal affairs of Landlord and
issues of or limitations on any personal liability of the shareholders and
trustees of Landlord for obligations of Landlord, as to which the laws of the
State of Maryland shall govern, this Agreement, the Transaction Documents and
any other instruments executed and delivered to evidence, complete or perfect the
transactions contemplated hereby and thereby shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where
any such instrument is executed or delivered; or (ii) where any payment or
other performance required by any such instrument is made or required to be
made; or (iii) where any breach of any provision of any such instrument
occurs, or any cause of action otherwise accrues; or (iv) where any action
or other proceeding is instituted or pending; or (v) the nationality,
citizenship, domicile, principal place of business, or jurisdiction of
organization or domestication of any party; or (vi) whether the laws of
the forum jurisdiction otherwise would apply the laws of a jurisdiction other
than The Commonwealth of Massachusetts; or (vii) any combination of the
foregoing.


 


15.          Arbitration.  Either Landlord or the Guarantor may elect to submit to
arbitration any dispute hereunder that has an amount in controversy in excess
of $250,000.  Any such arbitration shall
be conducted in Boston, Massachusetts in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then pertaining
and the decision of the arbitrators with respect to such dispute shall be
binding, final and conclusive on the parties.


 


In the
event that any such dispute is submitted to arbitration hereunder, Landlord and
the Guarantor shall each appoint and pay all fees of a fit and impartial person
as arbitrator with at least ten (10) years’ recent professional experience
in the general subject matter of the dispute. 
Notice of such appointment shall be sent in writing by each party to the
other, and the arbitrators so appointed, in the event of their failure to agree
within thirty (30) days after the appointment of the second arbitrator upon the
matter so submitted, shall appoint a third arbitrator.  If either Landlord


 


10
















 


or the Guarantor shall fail to appoint an arbitrator
as aforesaid for a period of twenty (20) days after written notice from the
other party to make such appointment, then the arbitrator appointed by the
party having made such appointment shall appoint a second arbitrator and the
two (2) so appointed shall, in the event of their failure to agree upon
any decision within thirty (30) days thereafter, appoint a third
arbitrator.  If such arbitrators fail to
agree upon a third arbitrator within forty five (45) days after the appointment
of the second arbitrator, then such third arbitrator shall be appointed by the
American Arbitration Association from its qualified panel of arbitrators, and
shall be a person having at least ten (10) years’ recent professional experience
as to the subject matter in question. 
The fees of the third arbitrator and the expenses incident to the
proceedings shall be borne equally between the applicable Landlord and the
Guarantor, unless the arbitrators decide otherwise.  The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.


 


The
decision of the arbitrators shall be rendered within thirty (30) days after
appointment of the third arbitrator. 
Such decision shall be in writing and in duplicate, one counterpart
thereof to be delivered to the applicable Landlord and one to the Guarantor.  A judgment of a court of competent
jurisdiction may be entered upon the award of the arbitrators in accordance
with the rules and statutes applicable thereto then obtaining.


 


Landlord and the
Guarantor acknowledge and agree that, to the extent any such dispute shall
involve any Manager and be subject to arbitration pursuant to such Manager’s
Management Agreement, Landlord and the Guarantor shall cooperate to consolidate
any such arbitration hereunder and under such Management Agreement into a
single proceeding.


 


16.          Modification of Agreement. 
No modification or waiver of any provision of this Agreement, nor any
consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by Landlord, and such
modification, waiver or consent shall be effective only in the specific
instances and for the purpose for which given. 
No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in the same, similar or
other circumstances.  This Agreement may
not be amended except by an instrument in writing 


 


11

















 


executed by or on behalf of the party against whom
enforcement of such amendment is sought.


 


17.          Waiver of Rights by Landlord. 
Neither any failure nor any delay on Landlord’s part in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude 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 provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, but this Agreement shall be
reformed and construed and enforced to the maximum extent permitted by
applicable law.


 


19.          Entire Contract. 
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and shall supersede and take
the place of any other instruments purporting to be an agreement of the parties
hereto relating to the subject matter hereof.


 


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


 


21.          Remedies Cumulative. 
No remedy herein conferred upon Landlord is intended to be exclusive of
any other remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise.


 


22.          NON-LIABILITY OF
TRUSTEES.  THE DECLARATIONS OF TRUST ESTABLISHING
CERTAIN ENTITIES COMPRISING LANDLORD, COPIES OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (COLLECTIVELY, THE “DECLARATIONS”), ARE DULY FILED
WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDE THAT THE NAMES OF SUCH ENTITIES REFER TO THE TRUSTEES UNDER SUCH
DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND
THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH ENTITIES SHALL
BE HELD TO ANY PERSONAL 


 


12

















 


LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, SUCH ENTITIES.  ALL PERSONS
DEALING WITH SUCH ENTITIES, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH
ENTITIES FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


23.          Original
Guarantees.  The Guarantor
and Landlord acknowledge and agree that this Agreement amends and restates the
Original Guarantees in their entirety with respect to the Guaranteed
Obligations and that this Agreement shall govern the rights and obligations of
the Guarantor with respect to the Guaranteed Obligations from and after the
date of this Agreement.  Notwithstanding
the foregoing, the Original Guarantees shall continue to govern the rights and
obligations of the Guarantor with respect to the Guaranteed Obligations (as
defined in the Original Guarantees) prior to the date of this Agreement and
nothing contained in this Agreement shall operate to release the Guarantor from
any such rights or obligations.


 


[Remainder of page intentionally
blank.]


 


13

















 


WITNESS the execution hereof under seal as of
the date above first written.


 


	
   

  	
  FIVE
  STAR QUALITY CARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Bruce J. Mackey

  
	
   

  	
   

  	
  Bruce
  J. Mackey Jr.

  
	
   

  	
   

  	
  President

  



 


 


LANDLORD
HEREBY CONSENTS TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
GUARANTOR AND FURTHER ACKNOWLEDGES AND AGREES TO THE PROVISIONS OF SECTION 23
OF THIS AGREEMENT.


 


CCC FINANCING I TRUST,


CCC OF KENTUCKY TRUST,


CCC OHIO HEALTHCARE TRUST,
and


CCC PUEBLO NORTE TRUST


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer of each of

  the foregoing entities

  



 


 


CCC INVESTMENTS I, L.L.C.,


CCCP SENIOR LIVING LLC,


CCDE SENIOR LIVING LLC,


CCFL SENIOR LIVING LLC,


CCOP SENIOR LIVING LLC,


CCSL SENIOR LIVING LLC, and


LTJ SENIOR COMMUNITIES LLC


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer of each of

  the foregoing entities

  



 

















 


CCC FINANCING LIMITED, L.P.


 


 


By: CCC RETIREMENT TRUST, 

its General Partner


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer

  



 


 


CCC RETIREMENT COMMUNITIES II, 

L.P.


 


By: CRESTLINE VENTURES LLC,

its General Partner


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer

  



 


 


HRES1 PROPERTIES TRUST


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer

  



 

















 


LEISURE PARK VENTURE LIMITED

PARTNERSHIP


 


By: CCC LEISURE PARK

CORPORATION,

its General Partner


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer

  



 


 


PANTHER
HOLDINGS LEVEL I, L.P.


 


By:
PANTHER GENPAR TRUST, 

its General Partner


 


 


	
  By:

  	
      /s/  Richard A. Doyle

  	
   

  
	
   

  	
  Richard A. Doyle

  
	
   

  	
  Treasurer and Chief

  Financial Officer