**Exhibit10.23**

 

**THIRTEENTHAMENDMENT TO SECOND AMENDEDAND RESTATED LEASE AGREEMENT**

 

**THISTHIRTEENTH 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 hereofas a landlord, as landlord (collectively, “Landlord”), and (ii) **FIVE STAR QUALITY CARE TRUST**, a Maryland business trust, astenant (“Tenant”).

 

**W**** I T N E S S E T H:**

 

**WHEREAS**, pursuant to the terms of that certainSecond 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 LeaseAgreement, dated as of June 3, 2005, that certain Third Amendment toSecond Amended and Restated Lease Agreement, dated as of October 31, 2005,that certain other Third Amendment to Second Amended and Restated LeaseAgreement, dated as of December 30, 2005, that certain Letter Agreement,dated as of March 13, 2006, that certain Fifth Amendment to Second Amendedand Restated Lease Agreement, dated as of September 1, 2006, that certainSixth Amendment to Second Amended and Restated Lease Agreement, dated as of October 1,2006, that certain Seventh Amendment to Second Amended and Restated LeaseAgreement, dated as of October 1, 2006, that certain Eighth Amendment toSecond Amended and Restated Lease, dated as of November 1, 2006, thatcertain Ninth Amendment to Second Amended and Restated Lease, dated as of November 1,2006, that certain Tenth Amendment to Second Amended and Restated LeaseAgreement, dated as of November 6, 2006 (effective as of November 5,2006), that certain Eleventh Amendment to Second Amended and Restated LeaseAgreement, dated as of December 22, 2006, and that certain TwelfthAmendment to Second Amended and Restated Lease Agreement, dated as of January 1,2007, (as so amended, the “Consolidated Lease”), Landlord leases toTenant, and Tenant leases from Landlord, the Leased Property (this and othercapitalized terms used but not otherwise defined herein having the meaningsgiven such terms in the Consolidated Lease), all as more particularly describedin the Consolidated Lease; and

 

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

 

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

 

**WHEREAS,** SPTMNR Properties Trust, the other entitiescomprising Landlord and Tenant wish to amend the Consolidated Lease to includethe Meadowmere Properties;

 

**NOW,THEREFORE**, inconsideration of the mutual covenants herein contained and other good andvaluable consideration, the mutual receipt and legal sufficiency of which arehereby acknowledged, Landlord and Tenant hereby agree as follows:

 

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

 

**“BaseYear”**shallmean (i) with respect to the Existing Properties, the 2005 calendar year, (ii) withrespect to the Additional Properties, the 2006 calendar year, (iii) withrespect to the Hermitage/Marsh View/Somerset/Walking Horse and the HolidayProperties, other than the Buena Vida Property, the 2007 calendar year, (iv) withrespect to the Buena Vida Property, the 2008 calendar year, and (v) withrespect 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 inits entirety and replaced with the following:

 

**“DisbursementRate” **shall mean (a) with respect to allof the Properties other than the Hermitage/Marsh View/Somerset/Walking HorseProperties, the Holiday Properties and the Meadowmere Properties, an annualrate of interest, as of the date of determination, equal to the greater of (i) theInterest Rate, and (ii) the per annum rate for ten (10) year U.S.Treasury Obligations as published in The Wall Street Journal plus fourhundred (400) basis points, (b) with respect to the HermitageHermitage/Marsh View/Somerset/Walking Horse Properties, the Holiday Propertiesand the Meadowmere Properties, an annual rate of interest, as of the date ofdetermination, equal to the greater of (i) the Interest Rate, and (ii) theper annum rate for ten (10) year U.S. Treasury Obligations as published inThe Wall Street 

 

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Journal plus three hundred twenty-five (325)basis points; provided, however, that in no event shall theDisbursement 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 inits entirety and replaced with the following:

 

**“InterestRate”**shallmean, (i) with respect to the Existing Properties, ten percent (10%) perannum, (ii) with respect to the Additional Properties, nine percent (9%)per annum, (iii) with respect to the Hermitage/Marsh View/Somerset/WalkingHorse 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 inits entirety and replaced with the following:

 

**“MinimumRent”**  shall mean the sum of $47,531,493.00 perannum.

 

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

 

**“MeadowmereProperties”**shallmean the Properties located on the Land described on Exhibits A-98through Exhibit A-103 attached hereto.

 

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

 

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

 

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

 

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(b)           In the event that, in the reasonabledetermination of Tenant, it shall no longer be economically practical tooperate any Property as currently operated,****Tenant shallgive Landlord Notice thereof, which Notice shall set forth in reasonable detailthe reasons therefor.  Thereafter,Landlord and Tenant shall negotiate in good faith to agree on an alternativeuse for such Property, appropriate adjustments to the Additional Rent and otherrelated matters; provided, however, in no event shall the MinimumRent be reduced or abated as a result thereof. If Landlord and Tenant fail to agree on an alternative use for suchProperty 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 toimplement the terms of such Offer, Tenant shall give Landlord Notice thereof,which Notice shall include a copy of the Offer executed by such thirdparty.  In the event that Landlord shallfail to accept or reject such Offer within thirty (30) days after receipt ofsuch Notice, such Offer shall be deemed to be rejected by Landlord.  If Landlord shall sell the Property pursuantto such Offer, then, effective as of the date of such sale, this Agreementshall terminate with respect to such Property, and the Minimum Rent shall bereduced by an amount equal to the product of (a) the Interest Rateapplicable to such Property multiplied by (b) the net proceeds of salereceived 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 shallterminate with respect to such Property, and the Minimum Rent shall be reducedby an amount equal to the product of (a) the Interest Rate applicable tosuch Property multiplied by (b) the projected net proceeds determined byreference to such Offer for such Property.

 

8.             Exhibit A.  Exhibit A to the Consolidated Lease ishereby amended by adding Exhibits A-98 through A-103 attachedhereto following Exhibit A-97 to the Consolidated Lease.

 

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

 

**[SIGNATURE PAGE FOLLOWS]**

 

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**INWITNESS WHEREOF**,Landlord and Tenant have caused this Thirteenth Amendment to Second Amended andRestated Lease Agreement to be duly executed, as a sealed instrument, as of thedate 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 |

 

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