EXHIBIT
10.4


 


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 November 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 amended by
that certain First Amendment to Amended and Restated Master Lease Agreement
(Lease No. 3), dated as of August 1, 2008, and that certain Second
Amendment to Amended and Restated Master Lease Agreement (Lease No. 3),
dated as of September 1, 2008 (as so amended, “Amended Lease No. 3”), certain
entities comprising the Landlord lease to the Tenant, and the Tenant leases
from certain entities comprising 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 or confirmed 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 may be amended, restated or otherwise
modified or confirmed 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 Third Amendment to Amended and
Restated Master Lease Agreement (Lease No. 3), dated as of the date hereof
(the “Third Amendment”), Amended Lease No. 3 is being amended to
add a certain property thereto, as more particularly described in the Third
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 “IN Sublease”)
with Five Star Quality Care-IN, LLC, a Maryland limited liability company and
an affiliate of Tenant (the “IN Subtenant”), to sublease the property
being added to Amended Lease No. 3 pursuant to the Third Amendment; and


 


WHEREAS, in connection with, and
as a condition precedent to, the execution of the Third 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 Third Amendment, and
that the Incidental Documents be amended, subject to the terms and conditions
of this Confirmation; and


 


WHEREAS, in connection with the
execution of the Third Amendment and the IN 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 the Subtenants and certain entities comprising the Landlord (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 certain entities comprising the Landlord (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 certain of the Subtenant Pledgors for the benefit of certain
entities comprising the Landlord (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;


 


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 parties hereto hereby agree, effective as
of the date hereof, as follows:


 


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


 


2.             Joinder by New Subtenant Pledgors.  The Heartlands Retirement Community -
Ellicott City I, Inc. and The Heartlands Retirement Community - Ellicott
City II, Inc., each a Maryland corporation, as the sole members of
FSQC-AL, LLC and IN Subtenant respectively, hereby join in the Subtenant Pledge
Agreement as if they had originally executed and delivered the Subtenant Pledge
Agreement as “Pledgors” thereunder.


 


3.             Acknowledgement of O.F.C.
Corporation.  Each of Tenant,
Guarantor, Subtenants, Tenant Pledgor and Subtenant Pledgors hereby recognizes
O.F.C. Corporation as a beneficiary under each of the Incidental Documents as
if O.F.C. Corporation were originally named as a “Landlord” or “Secured Party”,
as applicable, under such Incidental Document where the context so applies.


 


4.             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.


 


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


 


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


 


7.             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 


 


3

















 


Lease No. 3” shall refer to
Amended Lease No. 3 as amended by the Third Amendment, and the Guarantees
and the other Incidental Documents, as amended and confirmed hereby, are hereby
ratified and confirmed in all respects.


 


8.             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 Third
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.


 


[Signatures
on the following pages.]


 


4

















 


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


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  FIVE
  STAR QUALITY CARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  FIVE
  STAR QUALITY CARE TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT PLEDGOR:

  
	
   

  	
   

  
	
   

  	
  FSQ, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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,

  
	
   

  	
  HAMILTON PLACE, LLC,

  
	
   

  	
  THE
  HEARTLANDS RETIREMENT COMMUNITY– ELLICOTT CITY I, INC.,  and

  
	
   

  	
  THE
  HEARTLANDS RETIREMENT COMMUNITY– ELLICOTT CITY II, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Travis K. Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President of each of the

  
	
   

  	
   

  	
  foregoing
  entities

  



 


	
   

  	
  SUBTENANTS:

  
	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE-IN, LLC,

  
	
   

  	
  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

  



 


7

















 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  SPTIHS
  PROPERTIES TRUST,

  
	
   

  	
  SPTMNR
  PROPERTIES TRUST,

  
	
   

  	
  SNH
  SOMERFORD PROPERTIES TRUST,

  
	
   

  	
  and O.F.C. CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David J. Hegarty

  
	
   

  	
   

  	
  David
  J. Hegarty

  
	
   

  	
   

  	
  President
  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 (Subleases) and
Exhibit C (Pledged Interests) and Schedule 1 (Subtenants), Schedule 2
(Facilities), and Schedule 3 (Facilities)