EXHIBIT
10.1


 


CONFIRMATION OF AND JOINDER TO GUARANTEES AND 

CONFIRMATION AND AMENDMENT OF AND JOINDER TO 

OTHER INCIDENTAL DOCUMENTS


 


THIS CONFIRMATION OF AND JOINDER TO GUARANTEES AND CONFIRMATION AND
AMENDMENT OF AND JOINDER TO OTHER INCIDENTAL DOCUMENTS (this “Confirmation”)
is made as of August 1, 2008 by FIVE STAR QUALITY CARE,
INC., a Maryland
corporation  (the “Guarantor”), FIVE STAR QUALITY CARE TRUST, a Maryland
business trust (the “Tenant”), FSQ,
INC., a Delaware corporation (the “Tenant Pledgor”), each of
the parties identified on the signature page hereof as a subtenant pledgor
(collectively, the “Subtenant Pledgors”), and each of the parties
identified on the signature page hereof as a subtenant (collectively, the “Subtenants”)
for the benefit of each of the parties identified on the signature page hereof
as a landlord (collectively, the “Landlord”).


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS, pursuant to the terms of that certain Amended and
Restated Master Lease Agreement (Lease No. 3), dated as of June 30,
2008 (as the same may be amended, restated or otherwise modified from time to
time, “Amended Lease No. 3”), the Landlord leases to the Tenant,
and the Tenant leases from the Landlord, certain property, all as more
particularly described in Amended Lease No. 3; and


 


WHEREAS, the payment
and performance of all of the obligations of the Tenant with respect to Amended
Lease No. 3 are guaranteed by that certain Amended and Restated Guaranty
Agreement (Lease No. 3), dated as of June 30, 2008, made by the Guarantor
for the benefit of the Landlord (as the same may be amended, restated or
otherwise modified from time to time, the “Tenant Guarantee”) and that
certain Amended and Restated Subtenant Guaranty Agreement (Lease No. 3),
dated as of June 30, 2008, made by certain of the Subtenants for the
benefit of the Landlord (as the same my be amended, restated or otherwise
modified from time to time, the “Subtenant Guarantee”; and, together
with the Tenant Guarantee, collectively, the “Guarantees”); and


 


WHEREAS, the payment
and performance of all of the obligations of the Tenant with respect to Amended
Lease No. 3 are further secured by the other Incidental Documents (this
and other capitalized terms used but not otherwise defined herein 


 

















 


shall have the meanings ascribed
to them in Amended Lease No. 3); and


 


WHEREAS, pursuant to a First Amendment to Amended and
Restated Master Lease Agreement (Lease No. 3), dated as of the date hereof
(the “First Amendment”), Amended Lease No. 3 is being amended to
add certain properties thereto, all as more particularly described in the First
Amendment; and


 


WHEREAS, the Tenant
intends to enter into a sublease agreement (as the same may be amended,
restated or otherwise modified from time to time, the “AL Sublease”)
with FSQC-AL, LLC, a Maryland limited liability company and an affiliate of
Tenant (the “AL Subtenant”), to sublease the properties being added to
Amended Lease No. 3 pursuant to the First Amendment; and


 


WHEREAS, in connection with, and
as a condition precedent to, the execution of the First Amendment by the
Landlord, the Landlord has required that the parties hereto confirm that the
Guarantees and the other Incidental Documents remain in full force and effect
and apply to Amended Lease No. 3 as amended by the First Amendment, that
the company interests in the AL Subtenant be pledged to the Landlord as
additional security for the payment and perform of the obligations of Tenant
under Amended Lease No. 3 and that the AL Subtenant join into those
Incidental Documents as may be applicable to it; and


 


WHEREAS, in connection with the
execution of the First Amendment and the AL Sublease, and in order to
accomplish the foregoing, the parties hereto wish to amend certain of the
Incidental Documents, including (i) the Amended and Restated Subtenant
Security Agreement (Lease No. 3), dated as of June 30, 2008, by and
among certain of affiliates of the Subtenants and the Landlords (as the same
may be amended, restated or otherwise modified or confirmed from time to time,
the “Subtenant Security Agreement”); (ii) the Amended and Restated Security Agreement (Lease No. 3),
dated as of June 30, 2008, by and among the Tenant and the Landlords (as
the same may be amended, restated or otherwise modified or confirmed
from time to time, the “Tenant Security Agreement”); and (iii) the Amended and Restated
Pledge of Stock and Membership Interests Agreement, dated as of June 30,
2008, made by the Subtenant Pledgors for the benefit of the Landlords (as the
same may be amended, restated or otherwise modified or confirmed from
time to time, the “Subtenant Pledge Agreement”), all subject to and upon the terms
and conditions herein set forth;


 


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NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the mutual receipt and legal sufficiency of
which are hereby acknowledged, the parties hereto hereby agree, effective as of
the date hereof, as follows:


 


1.             Joinder by AL Subtenant.  The AL Subtenant hereby joins in the
Subtenant Guaranty and the Subtenant Security Agreement as if it had originally
executed and delivered the Subtenant Guaranty and the Subtenant Security
Agreement as a “Subtenant” thereunder.


 


2.             Amendment of Subtenant
Security Agreement.  The
Subtenant Security Agreement is hereby amended by (i) replacing Exhibit A
attached thereto with Exhibit A attached hereto; (ii) replacing
Schedule 1 attached thereto with Schedule 1 attached hereto; and (iii) replacing
Schedule 2 attached thereto with Schedule 2 attached hereto.


 


3.             Amendment
of Tenant Security Agreement.  The
Tenant Security Agreement is hereby amended by replacing Schedule 2 attached
thereto with Schedule 3 attached hereto.


 


4.             Amendment
of Subtenant Pledge Agreement.  The
Subtenant Pledge Agreement is hereby amended by (i) replacing Exhibit A
attached thereto with Exhibit A attached hereto; and (ii) replacing
Exhibit B attached thereto with Exhibit B attached hereto.


 


5.             Confirmation of Guarantees and
Other Incidental Documents.  Each of
the parties to the Guarantees and the other Incidental Documents hereby
confirms that all references in the Guarantees and the other Incidental
Documents to the “Amended Lease No. 3” shall refer to
Amended Lease No. 3 as amended by the First Amendment, and the Guarantees
and the other Incidental Documents, as amended and confirmed hereby, are hereby
ratified and confirmed in all respects.


 


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


 


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[Signatures on following
pages.]


 


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


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  FIVE
  STAR QUALITY CARE, INC.,

  
	
   

  	
  a
  Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  FIVE
  STAR QUALITY CARE TRUST,

  
	
   

  	
  a
  Maryland business trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT PLEDGOR:

  
	
   

  	
   

  
	
   

  	
  FSQ, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUBTENANT
  PLEDGORS:

  
	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE-CA II, INC.,

  
	
   

  	
  FIVE STAR QUALITY CARE-SOMERFORD, 

  
	
   

  	
  LLC, SOMERFORD PLACE LLC and 

  
	
   

  	
  HAMILTON PLACE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President of each of the

  
	
   

  	
   

  	
  foregoing
  entities

  



 


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  SUBTENANTS:

  
	
   

  	
   

  
	
   

  	
  FSQC-AL, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-CA II, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-COLORADO, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-GA, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-IA, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-KS, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-MO, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-NE, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-WI, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-WY, LLC,

  
	
   

  	
  FIVE STAR QUALITY CARE-NE, INC.,

  
	
   

  	
  ANNAPOLIS HERITAGE PARTNERS, LLC,

  
	
   

  	
  COLUMBIA HERITAGE PARTNERS, LLC,

  
	
   

  	
  ENCINITAS HERITAGE PARTNERS, LLC,

  
	
   

  	
  FREDERICK HERITAGE PARTNERS, LLC,

  
	
   

  	
  HAGERSTOWN HERITAGE PARTNERS, LLC,

  
	
   

  	
  NEWARK HERITAGE PARTNERS I, LLC,

  
	
   

  	
  NEWARK HERITAGE PARTNERS II, LLC,

  
	
   

  	
  REDLANDS HERITAGE PARTNERS, LLC, and

  
	
   

  	
  STOCKTON HERITAGE PARTNERS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President of each of the 

  
	
   

  	
   

  	
  foregoing
  entities

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FRESNO HERITAGE PARTNERS,

  
	
   

  	
  A CALIFORNIA LIMITED PARTNERSHIP and

  
	
   

  	
  ROSEVILLE HERITAGE PARTNERS, A

  
	
   

  	
  CALIFORNIA LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Somerford
  Place LLC,

  
	
   

  	
   

  	
  General
  Partner of each of 

  
	
   

  	
   

  	
  the
  foregoing entities

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
   

  	
  Vice
  President of each of

  
	
   

  	
   

  	
   

  	
  the
  foregoing entities

  
					



 


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  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  SPTIHS
  PROPERTIES TRUST,

  
	
   

  	
  SPTMNR PROPERTIES TRUST, and

  
	
   

  	
  SNH SOMERFORD PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Doyle

  
	
   

  	
   

  	
  Richard
  A. Doyle

  
	
   

  	
   

  	
  Treasurer
  and Chief Financial

  
	
   

  	
   

  	
  Officer
  and Secretary of each

  
	
   

  	
   

  	
  Of
  the foregoing entities

  



 


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


 


Exhibit
A (Subleases), Exhibit B (Pledged Interests) and Schedule 1 (Facilities),
Schedule 2 (Facilities) and Schedule 3 (Facilities)