**Exhibit 10.40**

**CONFIRMATION OF GUARANTEES AND CONFIRMATION AND AMENDMENT OF OTHER INCIDENTAL DOCUMENTS**

**THIS CONFIRMATION OF GUARANTEES AND CONFIRMATIONAND AMENDMENT OF OTHER INCIDENTAL DOCUMENTS**(this “Confirmation”) is made as of January 1,2007 by **FIVE STAR QUALITY CARE, INC.**, a Maryland corporation****(the “Guarantor”), **FIVESTAR QUALITY CARE TRUST**, a Maryland business trust (the “Tenant”),**FSQ, INC.**, a Delaware corporation(the “Tenant Pledgor”), each of the parties identified on the signaturepage 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 partiesidentified on the signature page hereof as a landlord (collectively, the “Landlords”).

**WITNESSETH :**

**WHEREAS**, pursuant to the terms of that certain Second Amendedand Restated Lease Agreement, dated as of November 19, 2004, as amended by thatcertain First Amendment of Lease dated as of May 17, 2005, that certain Second Amendment to SecondAmended and Restated Lease Agreement dated as of June 3, 2005, that certainThird Amendment to Second Amended and Restated Lease Agreement dated as ofOctober 31, 2005, that certain other Third Amendment to Second Amended andRestated Lease Agreement dated as of December 30, 2005, that certain LetterAgreement dated as of March 13, 2006, that certain Fifth Amendment to SecondAmended and Restated Lease Agreement dated as of September 1, 2006, that certainSixth Amendment to Second Amended and Restated Lease Agreement dated as ofOctober 1, 2006, that certain Seventh Amendment to Second Amended and RestatedLease Agreement dated as of October 1, 2006, that certain Eighth Amendment toSecond Amended and Restated Lease Agreement dated as of November 1, 2006, thatcertain Ninth Amendment to Second Amended and Restated Lease Agreement dated asof November 1, 2006, that certain Tenth Amendment to Second Amended andRestated Lease Agreement dated as of November 6, 2006 and that certain EleventhAmendment to Second Amended and Restated Lease Agreement dated as of December22, 2006 (as so amended, the “Consolidated Lease”), the Landlordslease to the Tenant, and the Tenant leases from the Landlords, certain property,all as more particularly described in the Consolidated Lease; and

**WHEREAS,** the payment and performance obligationsof the Tenant with respect to the Consolidated Lease are guaranteed by thosecertain Guaranty Agreements described on Exhibit A attached hereto(collectively, the “Guarantees”); and

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**WHEREAS,** the payment and performance obligationsof the Tenant with respect to the Consolidated Lease are further secured by theother Incidental Documents (this and other capitalized terms used but nototherwise defined herein shall have the meanings ascribed to them in theConsolidated Lease); and

**WHEREAS**, pursuant to a Twelfth Amendment to Second Amendedand Restated Lease Agreement, dated as of the date hereof (the “TwelfthAmendment”), the Consolidated Lease is being amended to add certainproperty thereto, as more particularly described in the Twelfth Amendment;

**WHEREAS,**the Tenant intends to enterinto a sublease (the “Sublease”) with Morningside of Belmont, LLC, aDelaware limited liability company (“Morningside-Belmont”) to subleasethe property being added to the Consolidated Lease pursuant to the TwelfthAmendment to Morningside-Belmont;

**WHEREAS,** in connection with, and asa condition precedent to, the execution of the Twelfth Amendment by theLandlords, the Landlords have required that the parties hereto confirm that theGuarantees and the other Incidental Documents remain in full force and effectand apply to the Consolidated Lease as amended by the Twelfth Amendment; and

**WHEREAS,**in connection with the executionof the Twelfth Amendment and the Sublease, the parties hereto wish to amendcertain of the Incidental Documents, including (i) the Security Agreement,dated as of December 31, 2001, by and among certain of the Subtenants andcertain of the Landlords, as amended and confirmed from time to time (the “SubtenantSecurity Agreement”); (ii) the Security Agreement, dated as ofDecember 31, 2001, by and among the Tenant and certain of the Landlords,as amended and confirmed from time to time (the “Tenant Security Agreement”);and (iii) the Second Amended and Restated Pledge of Stock and MembershipInterests Agreement, dated as of May 6, 2005, made by the Subtenant Pledgorsfor the benefit of the Landlords, as amended and confirmed from time to time(the “Subtenant Pledge Agreement”), all subject to and upon the terms and conditionsherein set forth;

**NOW, THEREFORE**, in consideration of the foregoing and for other goodand valuable consideration, the mutual receipt and legal sufficiency of whichare hereby acknowledged, the parties hereto hereby agree as follows:

1.             Amendment ofSubtenant Security Agreement.  TheSubtenant Security Agreement is hereby amended by: (i) deleting the followingparagraph 25 from Exhibit A attached thereto:

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25.           Sublease Agreement, dated June 3,2005, by and between Five Star Quality Care Trust, a Maryland business trust,and Morningside of Belmont, LLC, a Delaware limited liability company.

(ii) inserting the following new paragraph at the endof Exhibit A attached thereto:

Amended and RestatedSublease Agreement, dated January 1, 2007, by and between Five StarQuality Care Trust, a Maryland business trust, and Morningside of Belmont, LLC,a Delaware limited liability company.

and (iii) inserting the following in the appropriateorder on Schedule 2 attached thereto:
|  | TENNESSEE: | WALKING HORSE MEADOWS  207 Uffelman Drive   Clarksville, TN 37043 |   | Morningside  of Belmont,  LLC |
|--|------------|-------------------------------------------------------------------|--------|-------------------------------|

 

2.             Amendment ofTenant Security Agreement.  TheTenant Security Agreement is hereby amended by inserting the following in theappropriate order on Schedule 2 attached thereto:
|        | TENNESSEE: | WALKING HORSE MEADOWS |
|--------|------------|-----------------------|
|   |       | 207 Uffelman Drive    |
|   |       | Clarksville, TN 37043 |
|   |       |                  |

 

3.             Amendment ofSubtenant Pledge Agreement.  TheSubtenant Pledge Agreement is hereby amended by (i) deleting the followingparagraph 29 from Exhibit A attached thereto:

29.           Sublease Agreement, dated June 3,2005, by and between Five Star Quality Care Trust, a Maryland business trust,as sublandlord, and Morningside of Belmont, LLC, a Delaware limited liabilitycompany, as subtenant.

and (ii) inserting the following new paragraph at theend of Exhibit A attached thereto:

Amended and RestatedSublease Agreement, dated January  1,2007, by and between Five Star Quality Care Trust, a Maryland business trust,as sublandlord, and Morningside of Belmont, LLC, a Delaware limited liabilitycompany, as subtenant.

4.             Confirmationof Guarantees.  Each of the partiesto the Guarantees hereby confirms that all references in the Guarantees

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to the “Master Lease” or the “Lease” shall refer tothe Consolidated Lease as amended by the Twelfth Amendment and the Guaranteesare hereby ratified and confirmed in all respects.

5.             Confirmation ofOther Incidental Documents.  Each ofthe parties to the Incidental Documents (other than the Guarantees) herebyconfirms that all references in such Incidental Documents to the “Master Lease”,the “Lease” or the “Second Amended Lease” shall refer to the Consolidated Leaseas amended by the Twelfth Amendment and that such Incidental Documents, asamended by this Confirmation, are hereby ratified and confirmed in allrespects.

6.             No Impairment,Etc.  The obligations, covenants,agreements and duties of the guarantors under the Guarantees shall not beimpaired in any manner by the execution and delivery of the Twelfth Amendment,the Guarantees, the other Incidental Documents, or any amendments, changes ormodifications thereof, and in no event shall any ratification or confirmationof such Guarantees or such other Incidental Documents, or the obligations,covenants, agreements and the duties of the guarantors thereunder or of theparties under the other Incidental Documents, including, without limitation,this Confirmation, be required in connection with any such amendment, change ormodification.

**[Signatureson following page.]**

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**INWITNESS WHEREOF**, the parties hereto have caused thisConfirmation to be duly executed, as a sealed instrument, as of the date firstset forth above.
|            | **GUARANTOR****:**               |
|------------|----------------------------------|
| ** ** |                             | ** ** |
| ** ** | **FIVE STAR QUALITY CARE, INC.** |
| ** ** |                             | ** ** |
| ** ** |                             | ** ** |
|       | By:                              | /s/ Bruce J. Mackey Jr. |
|       |                             | Bruce J. Mackey Jr. |
|       |                             | Treasurer, Chief Financial |
|       |                             | Officer and Assistant Secretary |
|       |                             |   |
|       |                             |   |
| ** ** | **TENANT:**                      |
| ** ** |                             | ** ** |
| ** ** | **FIVE STAR QUALITY CARE TRUST** |
| ** ** |                             | ** ** |
| ** ** |                             | ** ** |
|       | By:                              | /s/ Bruce J. Mackey Jr. |
|       |                             | Bruce J. Mackey Jr. |
|       |                             | Treasurer, Chief Financial |
|       |                             | Officer and Assistant Secretary |
|       |                             |   |
|       |                             |   |
| ** ** | **TENANT PLEDGOR:**              |
| ** ** |                             | ** ** |
| ** ** | **FSQ, INC.**                    |
| ** ** |                             | ** ** |
| ** ** |                             | ** ** |
|       | By:                              | /s/ Bruce J. Mackey Jr. |
|       |                             | Bruce J. Mackey Jr. |
|       |                             | Treasurer, Chief Financial |
|       |                             | Officer and Assistant Secretary |

** **

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**SUBTENANTPLEDGORS:**

**FSQ, INC., FIVE STAR QUALITY CARE TRUST**, **FVEST.****JOE, INC., FIVE STAR QUALITY CARE-CA, INC.**, **FIVE STAR QUALITY CARE-CA II, INC.**, **FIVE STAR QUALITY CARE-CO, INC.**, **THE HEARTLANDS RETIREMENT COMMUNITY-ELLICOTT CITY I,INC.**, **FIVE STAR QUALITY CARE-GA,INC.**, **FIVE STAR QUALITY CARE-IA,INC.**, **FIVE STAR QUALITY CARE-NE,INC.**, **FIVE STAR QUALITY CARE-WI,INC.****and****LIFETRUST AMERICA, INC.**
|            | By:                              | /s/ Bruce J. Mackey Jr.         |
|------------|----------------------------------|---------------------------------|
|       |                             | Bruce J. Mackey Jr.             |
|       |                             | Treasurer, Chief Financial      |
|       |                             | Officer and Assistant Secretary |
|       |                             | of each of the foregoing        |
|       |                             | entities                        |
|       |                             |                            |
|       |                             |                            |
|       | **LIFETRUST PROPERTIES, L.L.C.** |
| ** ** |                             |                            |
|       | By:                              | LifeTrust America Inc.,         |
|       |                             | Its Sole Member                 |
|       |                             |                            |
|       | By:                              | /s/ Bruce J. Mackey Jr.         |
|       |                             | Bruce J. Mackey Jr.             |
|       |                             | Treasurer, Chief Financial      |
|       |                             | Officer and Assistant Secretary |

 

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**SUBTENANTS:**

**FIVESTAR QUALITY CARE-AZ, LLC, FIVE STAR QUALITY CARE-CA, LLC, FIVE STAR QUALITYCARE-CA II, LLC,**

**FIVESTAR QUALITY CARE-COLORADO, LLC, FIVE STAR QUALITY CARE-FL, LLC, FIVE STARQUALITY CARE-GA, LLC, FIVE STAR QUALITY CARE-GHV, LLC, FIVE STAR QUALITYCARE-IA, LLC, FIVE STAR QUALITY CARE-IL, LLC, FIVE STAR QUALITY CARE-KS, LLC,FIVE STAR QUALITY CARE-MD, LLC, FIVE STAR QUALITY CARE-MO, LLC, FIVE STARQUALITY CARE-MS, LLC, FIVE STAR QUALITY CARE-NE, LLC, FIVE STAR QUALITYCARE-NC, LLC FIVE STAR QUALITY CARE-WI, LLC, FIVE STAR QUALITY CARE-WY, LLC,FIVE STAR QUALITY CARE-VA, LLC, FIVE STAR QUALITY CARE-CA, INC., FIVE STARQUALITY CARE-IA, INC.,**

**FIVESTAR QUALITY CARE-NE, INC.,**

**MORNINGSIDEOF GALLATIN, LLC, THE HEARTLANDS RETIREMENT COMMUNITY — ELLICOTT CITY I, INC. and**

**MORNINGSIDE OF BELMONT, LLC**
|        |   |   | By:    | /s/ Bruce J. Mackey Jr.         |   |   |
|--------|--------|--------|--------|---------------------------------|--------|--------|
|   |   |   |   | Bruce J. Mackey Jr.             |   |   |
|   |   |   |   | Treasurer, Chief Financial      |   |   |
|   |   |   |   | Officer and Assistant Secretary |   |   |
|   |   |   |   | of each of the foregoing        |   |   |
|   |   |   |   | entities                        |   |   |
|   |   |   |   |                            |   |   |

 

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**MORNINGSIDEOF ANDERSON, L.P., MORNINGSIDE OF ATHENS, LIMITED PARTNERSHIP, MORNINGSIDE OFCOLUMBUS, L.P., MORNINGSIDE OF DALTON, LIMITED PARTNERSHIP, MORNINGSIDE OFEVANS, LIMITED PARTNERSHIP, MORNINGSIDE OF GREENWOOD, L.P. and MORNINGSIDE OFKENTUCKY, LIMITED PARTNERSHIP**
|        | By:    | LifeTrust America, Inc.,       |
|--------|--------|--------------------------------|
|   |   | General Partner of each of the |
|   |   | foregoing entities             |
|   |   |                           |
|   |   |                           |
|   |   | By:                            | /s/ Bruce J. Mackey Jr. |
|   |   |                           | Bruce J. Mackey Jr. |
|   |   |                           | Treasurer, Chief  Financial |
|   |   |                           | Officer and  Assistant |
|   |   |                           | Secretary |

** **

**MORNINGSIDE OF BELLGRADE, RICHMOND,LLC, MORNINGSIDE OF CHARLOTTESVILLE, LLC, MORNINGSIDE OF NEWPORT NEWS, LLC andMORNINGSIDE OF SKIPWITH — RICHMOND, LLC**
|        | By:    | LifeTrust America, Inc.,        |
|--------|--------|---------------------------------|
|   |   | Member of each of the foregoing |
|   |   | entities                        |
|   |   |                            |
|   |   |                            |
|   |   | By:                             | /s/ Bruce J. Mackey Jr. |
|   |   |                            | Bruce J. Mackey Jr. |
|   |   |                            | Treasurer, Chief  Financial |
|   |   |                            | Officer and  Assistant |
|   |   |                            | Secretary |

** **

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**LANDLORD:**

**HRES2 PROPERTIES TRUST,**

**SPTIHS PROPERTIES TRUST,**

**SPT-MICHIGAN TRUST,**

**SPTMNR PROPERTIES TRUST,**

**SNH CHS PROPERTIES TRUST,**

**ELLICOTT CITY LAND I, LLC,**

**ELLICOTT CITY LAND II, LLC,**

**SNH/LTA PROPERTIES TRUST and**

**SNH/LTAPROPERTIES GA LLC**
|        | By:    | /s/ David J. Hegarty           |
|--------|--------|--------------------------------|
|   |   | David J. Hegarty               |
|   |   | President, Chief  Operating    |
|   |   | Officer and  Secretary of each |
|   |   | of the foregoing  entities     |

 

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** **

The following exhibit hasbeen omitted and will be supplementally furnished to the Securities andExchange Commission upon request:

Exhibit A

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