Exhibit
10.23


 


THIRTEENTH
AMENDMENT TO SECOND AMENDED

AND RESTATED LEASE AGREEMENT


 


THIS
THIRTEENTH AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AGREEMENT is made and entered into as of January 4,
2008 by and among (i) each of the parties identified on the signature page hereof
as a landlord, as landlord (collectively, “Landlord”), and (ii) FIVE STAR QUALITY CARE TRUST, a Maryland business trust, as
tenant (“Tenant”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to the terms of that certain
Second Amended and Restated Lease Agreement, dated as of November 19,
2004, as amended by that certain First Amendment of Lease, dated as of May 17,
2005, that certain Second Amendment to Second Amended and Restated Lease
Agreement, dated as of June 3, 2005, that certain Third Amendment to
Second Amended and Restated Lease Agreement, dated as of October 31, 2005,
that certain other Third Amendment to Second Amended and Restated Lease
Agreement, dated as of December 30, 2005, that certain Letter Agreement,
dated as of March 13, 2006, that certain Fifth Amendment to Second Amended
and Restated Lease Agreement, dated as of September 1, 2006, that certain
Sixth Amendment to Second Amended and Restated Lease Agreement, dated as of October 1,
2006, that certain Seventh Amendment to Second Amended and Restated Lease
Agreement, dated as of October 1, 2006, that certain Eighth Amendment to
Second Amended and Restated Lease, dated as of November 1, 2006, that
certain Ninth Amendment to Second Amended and Restated Lease, dated as of November 1,
2006, that certain Tenth Amendment to Second Amended and Restated Lease
Agreement, dated as of November 6, 2006 (effective as of November 5,
2006), that certain Eleventh Amendment to Second Amended and Restated Lease
Agreement, dated as of December 22, 2006, and that certain Twelfth
Amendment to Second Amended and Restated Lease Agreement, dated as of January 1,
2007, (as so amended, the “Consolidated Lease”), Landlord leases to
Tenant, and Tenant leases from Landlord, the Leased Property (this and other
capitalized terms used but not otherwise defined herein having the meanings
given such terms in the Consolidated Lease), all as more particularly described
in the Consolidated Lease; and


 


WHEREAS, on or about the date hereof, SPTMNR Properties Trust has acquired
certain real property and related improvements with respect to six (6) senior
living properties located in Wisconsin, as more particularly described on 


 

















 


Exhibits A-98 through A-103 attached hereto (collectively,
the “Meadowmere Properties”); and


 


WHEREAS, SPTMNR Properties Trust, the other entities
comprising Landlord and Tenant wish to amend the Consolidated Lease to include
the Meadowmere Properties;


 


NOW,
THEREFORE, in
consideration of the mutual covenants herein contained and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:


 


1.             Definition of Base Year.  The definition of the term “Base Year” set
forth in Section 1.9 of the Consolidated Lease is hereby deleted in its
entirety and replaced with the following:


 


“Base
Year” shall
mean (i) with respect to the Existing Properties, the 2005 calendar year, (ii) with
respect to the Additional Properties, the 2006 calendar year, (iii) with
respect to the Hermitage/Marsh View/Somerset/Walking Horse and the Holiday
Properties, other than the Buena Vida Property, the 2007 calendar year, (iv) with
respect to the Buena Vida Property, the 2008 calendar year, and (v) with
respect to the Meadowmere Properties, the 2009 calendar year.


 


2.             Definition of Disbursement Rate.  The definition of the term “Disbursement Rate”
set forth in Section 1.23 of the Consolidated Lease is hereby deleted in
its entirety and replaced with the following:


 


“Disbursement
Rate”  shall mean (a) with respect to all
of the Properties other than the Hermitage/Marsh View/Somerset/Walking Horse
Properties, the Holiday Properties and the Meadowmere Properties, an annual
rate of interest, as of the date of determination, equal to the greater of (i) the
Interest Rate, and (ii) the per annum rate for ten (10) year U.S.
Treasury Obligations as published in The Wall Street Journal plus four
hundred (400) basis points, (b) with respect to the Hermitage
Hermitage/Marsh View/Somerset/Walking Horse Properties, the Holiday Properties
and the Meadowmere Properties, an annual rate of interest, as of the date of
determination, equal to the greater of (i) the Interest Rate, and (ii) the
per annum rate for ten (10) year U.S. Treasury Obligations as published in
The Wall Street 


 


2

















 


Journal plus three hundred twenty-five (325)
basis points; provided, however, that in no event shall the
Disbursement Rate exceed eleven and one-half percent (11.5%).


 


3.             Definition of Interest Rate.  The definition of the term “Interest Rate”
set forth in Section 1.54 of the Consolidated Lease is hereby deleted in
its entirety and replaced with the following:


 


“Interest
Rate” shall
mean, (i) with respect to the Existing Properties, ten percent (10%) per
annum, (ii) with respect to the Additional Properties, nine percent (9%)
per annum, (iii) with respect to the Hermitage/Marsh View/Somerset/Walking
Horse Properties and the Holiday Properties, eight and one quarter percent
(8.25%) per annum, and (iv) with respect to the Meadowmere Properties,
eight percent (8%) per annum.


 


4.             Definition of Minimum Rent.  The definition for the term “Minimum Rent”
set forth in Section 1.69 of the Consolidated Lease is hereby deleted in
its entirety and replaced with the following:


 


“Minimum
Rent”  shall mean the sum of $47,531,493.00 per
annum.


 


5.             Definition of Meadowmere
Properties.  The following new
definition for the term “Meadowmere Properties” is hereby added to the
Consolidated Lease as a new section 1.104:


 


“Meadowmere
Properties” shall
mean the Properties located on the Land described on Exhibits A-98
through Exhibit A-103 attached hereto.


 


6.             Leased Property.  Section 2.1 of the Consolidated Lease is
hereby amended by deleting subsection (a) in its entirety and replacing it
with the following:


 


(a)           those certain tracts, pieces and
parcels of land as more particularly described in Exhibits A-1 through A-103
attached hereto and made a part hereof (the “Land”).


 


7.             Permitted Use.  Section 4.1.1 of the Consolidated Lease
is hereby amended by deleting subsection (b) in its entirety and replacing
it with the following:


 


3

















 


(b)           In the event that, in the reasonable
determination of Tenant, it shall no longer be economically practical to
operate any Property as currently operated,  Tenant shall
give Landlord Notice thereof, which Notice shall set forth in reasonable detail
the reasons therefor.  Thereafter,
Landlord and Tenant shall negotiate in good faith to agree on an alternative
use for such Property, appropriate adjustments to the Additional Rent and other
related matters; provided, however, in no event shall the Minimum
Rent be reduced or abated as a result thereof. 
If Landlord and Tenant fail to agree on an alternative use for such
Property within sixty (60) days after commencing negotiations as aforesaid,
Tenant may market such Property for sale to a third party.  If Tenant receives a bona fide offer (an “Offer”)
to purchase such Property from a Person having the financial capacity to
implement the terms of such Offer, Tenant shall give Landlord Notice thereof,
which Notice shall include a copy of the Offer executed by such third
party.  In the event that Landlord shall
fail to accept or reject such Offer within thirty (30) days after receipt of
such Notice, such Offer shall be deemed to be rejected by Landlord.  If Landlord shall sell the Property pursuant
to such Offer, then, effective as of the date of such sale, this Agreement
shall terminate with respect to such Property, and the Minimum Rent shall be
reduced by an amount equal to the product of (a) the Interest Rate
applicable to such Property multiplied by (b) the net proceeds of sale
received by Landlord for such Property. 
If Landlord shall reject (or be deemed to have rejected) such Offer,
then, effective as of the proposed date of such sale, this Agreement shall
terminate with respect to such Property, and the Minimum Rent shall be reduced
by an amount equal to the product of (a) the Interest Rate applicable to
such Property multiplied by (b) the projected net proceeds determined by
reference to such Offer for such Property.


 


8.             Exhibit A.  Exhibit A to the Consolidated Lease is
hereby amended by adding Exhibits A-98 through A-103 attached
hereto following Exhibit A-97 to the Consolidated Lease.


 


9.             Ratification.  As amended hereby, the Consolidated Lease is
hereby ratified and confirmed.


 


[SIGNATURE PAGE FOLLOWS]


 


4

















 


IN
WITNESS WHEREOF,
Landlord and Tenant have caused this Thirteenth Amendment to Second Amended and
Restated Lease Agreement to be duly executed, as a sealed instrument, as of the
date first set forth above.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  ELLICOTT CITY LAND I LLC,
  ELLICOTT CITY LAND II LLC, HRES2 PROPERTIES TRUST, SNH CHS PROPERTIES TRUST,
  SPTIHS PROPERTIES TRUST, SPT-MICHIGAN TRUST,  SPTMNR PROPERTIES TRUST,
  SNH/LTA PROPERTIES TRUST, and SNH/LTA PROPERTIES GA LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Hegarty

  
	
   

  	
   

  	
  David J. Hegarty

  
	
   

  	
   

  	
  President, Chief Operating
  

  
	
   

  	
   

  	
  Officer and Secretary

  
	
   

  	
   

  	
  of each of the
  foregoing 

  
	
   

  	
   

  	
  entities

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  FIVE STAR QUALITY CARE TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Treasurer, Chief
  Financial 

  
	
   

  	
   

  	
  Officer and Assistant
  Secretary

  



 


5