Exhibit 10.13


 


AMENDED
AND RESTATED GUARANTY AGREEMENT


 


THIS
AMENDED AND RESTATED GUARANTY AGREEMENT (this “Guaranty”) is entered into as of August 4,
2009 by FIVE STAR QUALITY CARE, INC., a Maryland corporation  (“Guarantor”), for the benefit of SNH FM FINANCING
LLC, a Delaware limited liability company, SNH FM FINANCING TRUST, a Maryland
real estate investment trust, and ELLICOTT CITY LAND I, LLC, a Delaware limited
liability company, collectively as landlord (“Landlord”).


 


W  I  T  N  E  S  S  E  T
H :


 


WHEREAS, Guarantor and
certain affiliates of Landlord are parties to those certain Amended and Restated Guaranty Agreements,
dated as of June 30, 2008 (collectively, the “Original Guarantees”);
and


 


WHEREAS, the Original Guarantees guarantee all of
the payment and performance obligations of the tenants under those certain
Amended and Restated Lease Agreements, dated as of June 30, 2008, as
further described in the Original Guarantees (collectively, the “Original
Leases”); and


 


WHEREAS, the landlords
and tenants under the Original Leases are conveying their interests in certain
of the properties demised thereunder and, in connection therewith, they and
certain of their affiliates are amending and restating the Original Leases into
separate leases (collectively, the “Restated Leases”); and


 


WHEREAS, in connection with the execution and
delivery of the Restated Leases, Guarantor, Landlord and
certain affiliates of Landlord have agreed to amend and restate the Original
Guarantees into separate guarantees that will each guaranty all of the payment
and performance obligations of each tenant under a Restated Lease; and


 


WHEREAS, this Guaranty
amends and restates the Original Guarantees with respect to that certain
Amended and Restated Lease Agreement, dated as of the date hereof, between
Landlord and FVE FM Financing, Inc. (as the same may be amended, modified
or supplemented from time to time, the “FM Financing Lease”);


 


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, Guarantor hereby agrees as follows:


 

















 


1.                                       Certain
Terms.  Capitalized
terms used and not otherwise defined in this Guaranty shall have the meanings
ascribed to such terms in the FM Financing Lease.  The FM Financing Lease and the Incidental
Documents are hereinafter collectively referred to as the “FM Financing
Lease Documents.”


 


2.                                       Guaranteed
Obligations.  For purposes of this Guaranty the term “Guaranteed
Obligations” shall mean the payment and performance of each and every
obligation of Tenant to Landlord under the FM Financing Lease Documents or
relating thereto, whether now existing or hereafter arising, and including,
without limitation, the payment of the full amount of the Rent payable under
the FM Financing Lease.


 


3.                                       Representations
and Covenants.  Guarantor represents, warrants, covenants,
and agrees that:


 


3.1                                 Incorporation
of Representations and Warranties. 
The representations and warranties of Tenant and its Affiliated Persons
set forth in the FM Financing Lease Documents are true and correct on and as of
the date hereof in all material respects.


 


3.2                                 Performance
of Covenants and Agreements.  Guarantor hereby agrees to take all lawful
action in its power to cause Tenant duly and punctually to perform all of the
covenants and agreements set forth in the FM Financing Lease Documents.


 


3.3                                 Validity
of Agreement.  Guarantor has duly and validly executed and
delivered this Guaranty; this Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except as the enforceability thereof may be subject to bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ rights generally and subject to general
equitable principles, regardless of whether enforceability is considered in a
proceeding at law or in equity; and the execution, delivery and performance of
this Guaranty have been duly authorized by all requisite action of Guarantor
and such execution, delivery and performance by Guarantor will not result in
any breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of Guarantor pursuant to the
terms of, any indenture, mortgage, deed of trust, note, other evidence of
indebtedness, agreement or other instrument to which it may be a party or by
which it or any of its property or assets may be bound, or violate any 


 


2

















 


provision of law, or any applicable order,
writ, injunction, judgment or decree of any court or any order or other public
regulation of any governmental commission, bureau or administrative agency.


 


3.4                                 Payment
of Expenses.  Guarantor agrees, as principal obligor and
not as guarantor only, to pay to Landlord forthwith, upon demand, in
immediately available federal funds, all costs and expenses (including reasonable
attorneys’ fees and disbursements) incurred or expended by Landlord in
connection with the enforcement of this Guaranty, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the Overdue Rate. 
Guarantor’s covenants and agreements set forth in this Section 3.4
shall survive the termination of this Guaranty.


 


3.5                                 Notices.  Guarantor shall promptly give notice to
Landlord of any event known to it which might reasonably result in a material
adverse change in its financial condition.


 


3.6                                 Reports.  Guarantor shall promptly provide to Landlord
each of the financial reports, certificates and other documents required of it
under the FM Financing Lease Documents.


 


3.7                                 Books
and Records.  Guarantor shall at all times keep proper
books of record and account in which full, true and correct entries shall be
made of its transactions in accordance with generally accepted accounting
principles and shall set aside on its books from its earnings for each fiscal
year all such proper reserves, including reserves for depreciation, depletion,
obsolescence and amortization of its properties during such fiscal year, as
shall be required in accordance with generally accepted accounting principles,
consistently applied, in connection with its business.  Guarantor shall permit access by Landlord and
its agents to the books and records maintained by Guarantor during normal
business hours and upon reasonable notice. 
Any proprietary information obtained by Landlord with respect to
Guarantor pursuant to the provisions of this Guaranty shall be treated as
confidential, except that such information may be disclosed or used, subject to
appropriate confidentiality safeguards, pursuant to any court order or in any
litigation between the parties and except further that Landlord may disclose
such information to its prospective lenders, provided that Landlord shall
direct such lenders to maintain such information as confidential.


 


3.8                                 Taxes,
Etc.  Guarantor
shall pay and discharge promptly as they become due and payable all taxes,
assessments and other governmental charges or levies imposed upon Guarantor 


 


3

















 


or the income of Guarantor or upon any of the
property, real, personal or mixed, of Guarantor, or upon any part thereof, as
well as all claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a lien or charge upon any
property and result in a material adverse change in the financial condition of
Guarantor; provided, however, that Guarantor shall not be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings or other appropriate actions promptly initiated and
diligently conducted and if Guarantor shall have set aside on its books such
reserves of Guarantor, if any, with respect thereto as are required by
generally accepted accounting principles.


 


3.9                                 Legal
Existence of Guarantor.  Guarantor shall do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence.


 


3.10                           Compliance.  Guarantor shall use reasonable business
efforts to comply in all material respects with all applicable statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental authorities in respect of the conduct of its business and the
ownership of its property (including, without limitation, applicable statutes,
rules, regulations, orders and restrictions relating to environmental, safety
and other similar standards or controls).


 


3.11                           Insurance.  Guarantor shall maintain, with financially
sound and reputable insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
owners of established reputation engaged in the same or similar businesses and
similarly situated, in such amounts and by such methods as shall be customary
for such owners and deemed adequate by Guarantor.


 


3.12                           No
Change in Control.  Guarantor shall not permit the occurrence of
any direct or indirect Change in Control of Tenant or Guarantor.


 


4.                                       Guarantee.  Guarantor hereby unconditionally guarantees
that the Guaranteed Obligations which are monetary obligations shall be paid in
full when due and payable, whether upon demand, at the stated or accelerated
maturity thereof pursuant to any FM Financing Lease Document, or otherwise, and
that the Guaranteed Obligations which are performance obligations shall be
fully performed at the times and in the manner such performance is required by
the FM Financing Lease 


 


4

















 


Documents. 
With respect to the Guaranteed Obligations which are monetary
obligations, this guarantee is a guarantee of payment and not of collectability
and is absolute and in no way conditional or contingent.  In case any part of the Guaranteed
Obligations shall not have been paid when due and payable or performed at the
time performance is required, Guarantor shall, in the case of monetary
obligations, within five (5) Business Days after receipt of notice from
Landlord, pay or cause to be paid to Landlord the amount thereof as is then due
and payable and unpaid (including interest and other charges, if any, due
thereon through the date of payment in accordance with the applicable
provisions of the FM Financing Lease Documents) or, in the case of non-monetary
obligations, perform or cause to be performed such obligations in accordance
with the FM Financing Lease Documents.


 


5.                                       Set-Off.  Guarantor hereby authorizes Landlord, at any
time and without notice, to set off the whole or any portion or portions of any
or all sums credited by or due from Landlord to it against amounts payable
under this Guaranty.  Landlord shall
promptly notify Guarantor of any such set-off made by Landlord and the
application made by Landlord of the proceeds thereof.


 


6.                                       Unenforceability
of Guaranteed Obligations, Etc.  If Tenant is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations (other than because
the same have been previously discharged in accordance with the terms of the FM
Financing Lease Documents), or if any other moneys included in the Guaranteed Obligations
have become unrecoverable from Tenant by operation of law or for any other
reason, including, without limitation, the invalidity or irregularity in whole
or in part of any Guaranteed Obligation or of any Transaction Document or any
limitation on the liability of Tenant thereunder not contemplated by the FM
Financing Lease Documents or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any manner
whatsoever, the guarantees contained in this Guaranty shall nevertheless remain
in full force and effect and shall be binding upon Guarantor to the same extent
as if Guarantor at all times had been the principal debtor on all such
Guaranteed Obligations.


 


7.                                       Additional
Guarantees.  This Guaranty shall be in addition to any
other guarantee or other security for the Guaranteed Obligations and it shall
not be prejudiced or rendered unenforceable by the invalidity of any such other
guarantee or security or by any waiver, amendment, release or modification
thereof.


 


5

















 


8.                                       Consents
and Waivers, Etc. 
Guarantor hereby acknowledges receipt of correct and complete copies of
each of the FM Financing Lease Documents, and consents to all of the terms and
provisions thereof, as the same may be from time to time hereafter amended or
changed in accordance with the terms and conditions thereof, and, except as
otherwise provided herein, to the maximum extent permitted by applicable law,
waives (a) presentment, demand for payment, and protest of nonpayment, of
any principal of or interest on any of the Guaranteed Obligations, (b) notice
of acceptance of this Guaranty and of diligence, presentment, demand and
protest, (c) notice of any default hereunder and any default, breach or
nonperformance or Event of Default under any of the Guaranteed Obligations or
the FM Financing Lease Documents, (d) notice of the terms, time and place
of any private or public sale of any collateral held as security for the
Guaranteed Obligations, (e) demand for performance or observance of, and
any enforcement of any provision of, or any pursuit or exhaustion of rights or
remedies against Tenant or any other guarantor of the Guaranteed Obligations,
under or pursuant to the FM Financing Lease Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) to the extent Guarantor lawfully may do so,
any and all demands and notices of every kind and description with respect to
the foregoing or which may be required to be given by any statute or rule of
law and any defense of any kind which it may now or hereafter have with respect
to this Guaranty, or any of the FM Financing Lease Documents or the Guaranteed
Obligations (other than that the same have been discharged in accordance with
the FM Financing Lease Documents).


 


9.                                       No
Impairment, Etc.  The
obligations, covenants, agreements and duties of Guarantor under this Guaranty
shall not be affected or impaired by any assignment or transfer in whole or in
part of any of the Guaranteed Obligations without notice to Guarantor, or any
waiver by Landlord or any holder of any of the Guaranteed Obligations or by the
holders of all of the Guaranteed Obligations of the performance or observance
by Tenant or any other guarantor of any of the agreements, covenants, terms or
conditions contained in the Guaranteed Obligations or the FM Financing Lease
Documents or any indulgence in or the extension of the time for payment by
Tenant or any other guarantor of any amounts payable under or in connection
with the Guaranteed Obligations or the FM Financing Lease Documents or any
other instrument or agreement relating to the Guaranteed Obligations or of the
time for performance by Tenant or any other guarantor of any other obligations
under or arising out of any of the foregoing or the extension or renewal 


 


6

















 


thereof (except that with respect to any extension
of time for payment or performance of any of the Guaranteed Obligations granted
by Landlord or any other holder of such Guaranteed Obligations to Tenant,
Guarantor’s obligations to pay or perform such Guaranteed Obligation shall be
subject to the same extension of time for performance), or the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of Tenant or any other guarantor set forth in any of the foregoing, or the
voluntary or involuntary sale or other disposition of all or substantially all
of the assets of Tenant or any other guarantor or insolvency, bankruptcy, or
other similar proceedings affecting Tenant or any other guarantor or any assets
of Tenant or any such other guarantor, or the release or discharge of Tenant or
any such other guarantor from the performance or observance of any agreement,
covenant, term or condition contained in any of the foregoing without the
consent of the holders of the Guaranteed Obligations by operation of law, or
any other cause, whether similar or dissimilar to the foregoing.


 


10.                                 Reimbursement,
Subrogation, Etc. 
Guarantor hereby covenants and agrees that it will not enforce or
otherwise exercise any rights of reimbursement, subrogation, contribution or
other similar rights against Tenant (or any other person against whom Landlord
may proceed) with respect to the Guaranteed Obligations prior to the payment in
full of all amounts owing with respect to the FM Financing Lease Documents, and
until all indebtedness of Tenant to Landlord shall have been paid in full,
Guarantor shall not have any right of subrogation, and Guarantor waives any
defense it may have based upon any election of remedies by Landlord which
destroys its subrogation rights or its rights to proceed against Tenant for
reimbursement, including, without limitation, any loss of rights Guarantor may
suffer by reason of any rights, powers or remedies of Tenant in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
the indebtedness to Landlord.  Until all
obligations of Tenant pursuant to the FM Financing Lease Documents shall have
been paid and satisfied in full, Guarantor further waives any right to enforce
any remedy which Landlord now has or may in the future have against Tenant, any
other guarantor or any other person and any benefit of, or any right to
participate in, any security whatsoever now or in the future held by Landlord.


 


11.                                 Defeasance.  This Guaranty shall
terminate at such time as the Guaranteed Obligations have been paid and
performed in full and all other obligations of Guarantor to Landlord under this
Guaranty have been satisfied in full; provided, however, if at
any time, all or any part of any payment applied on account 


 


7

















 


of the Guaranteed Obligations is or must be
rescinded or returned for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of Tenant), this Guaranty, to the
extent such payment is or must be rescinded or returned, shall be deemed to
have continued in existence notwithstanding any such termination.


 


12.                                 Notices.


 


(a)                                  Any and all
notices, demands, consents, approvals, offers, elections and other
communications required or permitted under this Guaranty shall be deemed
adequately given if in writing and the same shall be delivered either in hand,
by telecopier with written acknowledgment of receipt, or by mail or Federal
Express or similar expedited commercial carrier, addressed to the recipient of
the notice, postpaid and registered or certified with return receipt requested
(if by mail), or with all freight charges prepaid (if by Federal Express or
similar carrier).


 


(b)                                 All notices
required or permitted to be sent hereunder shall be deemed to have been given
for all purposes of this Guaranty upon the date of acknowledged receipt, in the
case of a notice by telecopier, and, in all other cases, upon the date of
receipt or refusal, except that whenever under this Guaranty a notice is either
received on a day which is not a Business Day or is required to be delivered on
or before a specific day which is not a Business Day, the day of receipt or
required delivery shall automatically be extended to the next Business Day.


 


(c)                                  All such notices
shall be addressed,


 


if to Landlord to:


 


c/o Senior Housing
Properties Trust


400 Centre Street


Newton, Massachusetts  02458


Attn:  Mr. David J. Hegarty


[Telecopier No. (617) 796-8349]


 


if to Guarantor to:


 


Five Star Quality Care, Inc.


400 Centre Street


Newton, Massachusetts  02458


Attn:  Mr. Bruce J. Mackey Jr.


[Telecopier No. (617) 796-8385]


 


(d)                                 By notice given
as herein provided, the parties hereto and their respective successors and
assigns shall have the right 


 


8

















 


from time to time and at any time during the term of
this Guaranty to change their respective addresses effective upon receipt by
the other parties of such notice and each shall have the right to specify as
its address any other address within the United States of America.


 


13.                                 Successors
and Assigns.  Whenever in this Guaranty any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party, including without limitation the holders, from time
to time, of the Guaranteed Obligations; and all representations, warranties,
covenants and agreements by or on behalf of Guarantor which are contained in
this Guaranty shall inure to the benefit of Landlord’s successors and assigns,
including without limitation said holders, whether so expressed or not.


 


14.                                 Applicable
Law.  Except as to
matters regarding the internal affairs of Landlord and issues of or limitations
on any personal liability of the shareholders and trustees of Landlord for
obligations of Landlord, as to which the laws of the state of Landlord’s
organization shall govern, this Guaranty shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (a) where
any such instrument is executed or delivered; or (b) where any payment or
other performance required by any such instrument is made or required to be
made; or (c) where any breach of any provision of any such instrument
occurs, or any cause of action otherwise accrues; or (d) where any action
or other proceeding is instituted or pending; or (e) the nationality,
citizenship, domicile, principal place of business, or jurisdiction of
organization or domestication of any party; or (f) whether the laws of the
forum jurisdiction otherwise would apply the laws of a jurisdiction other than
The Commonwealth of Massachusetts; or (g) any combination of the foregoing.


 


15.                                 Disputes.  Any
disputes, claims or controversies between or among the parties hereto arising
out of or relating to this Guaranty or the transactions contemplated hereby,
including disputes, claims or controversies relating to the meaning, interpretation,
effect, validity, performance or enforcement of this Guaranty (all of which are
referred to as “Disputes”) or relating in any way to such a Dispute or
Disputes, shall on the demand of any party to such Dispute be resolved through
binding and final arbitration in accordance with the Commercial Arbitration Rules (the
“Rules”) of the American Arbitration Association (“AAA”) then in
effect, except as modified herein.  For
the avoidance of doubt, a Dispute shall 


 


9

















 


include
a Dispute made derivatively on behalf of one party against another party.


 


There shall be three arbitrators.  If there are (a) only two parties to the
Dispute, each party shall select one arbitrator within fifteen days after
receipt by respondent of a copy of the demand for arbitration and (b) more
than two parties to the Dispute, all claimants, on the one hand, and all
respondents, on the other hand, shall each select, by the vote of a majority of
the claimants or the respondents, as the case may be, one arbitrator.  The two party-nominated arbitrators shall
jointly nominate the third and presiding arbitrator within fifteen days of the
nomination of the second arbitrator.  If
any arbitrator has not been nominated within the time limit specified herein,
then the AAA shall provide a list of proposed arbitrators in accordance with
the Rules, and the arbitrator shall be appointed by the AAA in accordance with
a listing, striking and ranking procedure, with each party having a limited number
of strikes, excluding strikes for cause. 
For the avoidance of doubt, the arbitrators appointed by the parties to
such Dispute may be affiliates or interested persons of such parties but the
third arbitrator elected by the party arbitrators or by the AAA shall be
unaffiliated with either party.


 


The place of arbitration shall be Boston,
Massachusetts unless otherwise agreed by the parties.


 


There shall be only limited documentary discovery of
documents directly related to the issues in dispute, as may be ordered by the
arbitrators.


 


In rendering an award or decision (the “Arbitration
Award”), the arbitrators shall be required to follow the laws of the
Commonwealth of Massachusetts.  Any
arbitration proceedings or Arbitration Award rendered hereunder and the
validity, effect and interpretation of this arbitration agreement shall be
governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq.  The Arbitration Award shall be in writing and
may, but shall not be required to, briefly state the findings of fact and
conclusions of law on which it is based.


 


Except to the extent expressly provided by this
Guaranty or as otherwise agreed between the parties, each party involved in a
Dispute shall bear its own costs and expenses (including attorneys’ fees), and
the arbitrators shall not render an award that would include shifting of any
such costs or expenses (including attorneys’ fees) or, in a derivative case or
class action by a holder of any party, award any portion of such 


 


10

















 


party’s award to the claimant or the claimant’s attorneys.  Each party (or, if there are more than two
parties to the Dispute, all claimants, on the one hand, and all respondents, on
the other hand, respectively) shall bear the costs and expenses of its (or
their) selected arbitrator and the parties (or, if there are more than two
parties to the Dispute, all claimants, on the one hand, and all respondents, on
the other hand) shall equally bear the costs and expenses of the third
appointed arbitrator.


 


The Arbitration Award shall be final and binding
upon the parties thereto and shall be the sole and exclusive remedy between
such parties relating to the Dispute, including any claims, counterclaims,
issues or accounting presented to the arbitrators.  Judgment upon the Arbitration Award may be
entered in any court having jurisdiction. 
To the fullest extent permitted by law, no application or appeal to any
court of competent jurisdiction may be made in connection with any question of
law arising in the course of arbitration or with respect to any award made
except for actions relating to enforcement of this agreement to arbitrate or
any arbitral award issued hereunder and except for actions seeking interim or
other provisional relief in aid of arbitration proceedings in any court of
competent jurisdiction.


 


Any
monetary award shall be made and payable in U.S. dollars free of any tax,
deduction or offset.  The party against
which the Arbitration Award assesses a monetary obligation shall pay that obligation
on or before the thirtieth day following the date of the Arbitration Award or
such other date as the Arbitration Award may provide.


 


16.                                 Modification
of Agreement.  No modification or waiver of any provision of
this Guaranty, nor any consent to any departure by Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by
Landlord, and such modification, waiver or consent shall be effective only in
the specific instances and for the purpose for which given.  No notice to or demand on Guarantor in any
case shall entitle Guarantor to any other or further notice or demand in the
same, similar or other circumstances. 
This Guaranty may not be amended except by an instrument in writing
executed by or on behalf of the party against whom enforcement of such
amendment is sought.


 


17.                                 Waiver
of Rights by Landlord.  Neither any failure nor any delay on Landlord’s
part in exercising any right, power or privilege under this Guaranty shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any 


 


11

















 


other or further exercise or the exercise of any
other right, power or privilege.


 


18.                                 Severability.  In case any one or more of the provisions
contained in this Guaranty should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby, but this
Guaranty shall be reformed and construed and enforced to the maximum extent
permitted by applicable law.


 


19.                                 Entire
Contract.  This Guaranty constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede and take the place of any other instruments purporting to
be an agreement of the parties hereto relating to the subject matter hereof.


 


20.                                 Headings;
Counterparts.  Headings in this Guaranty are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.  This Guaranty may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument, and in pleading or proving any provision of this
Guaranty, it shall not be necessary to produce more than one of such
counterparts.


 


21.                                 Remedies
Cumulative.  No remedy herein conferred upon Landlord is
intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise.


 


22.                                 NON-LIABILITY
OF TRUSTEES.  THE DECLARATION OF TRUST ESTABLISHING SNH FM
FINANCING TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(COLLECTIVELY, THE “DECLARATION”), IS DULY FILED WITH THE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME “SNH
FM FINANCING TRUST” REFERS TO THE TRUSTEES UNDER SUCH DECLARATION COLLECTIVELY
AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF SNH FM FINANCING TRUST SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, SNH FM FINANCING TRUST.  ALL
PERSONS DEALING WITH SNH FM FINANCING TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE
ASSETS OF SNH FM FINANCING TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE
OF ANY OBLIGATION.


 


23.                                 Original Guarantees.  Guarantor and Landlord acknowledge and agree
that this Guaranty amends and restates the Original Guarantees in their
entirety with respect to the 


 


12

















 


Guaranteed Obligations and that this Guaranty
shall govern the rights and obligations of Guarantor with respect to the
Guaranteed Obligations from and after the date of this Guaranty.  Notwithstanding the foregoing, the Original
Guarantees shall continue to govern the rights and obligations of Guarantor
with respect to the “Guaranteed Obligations” (as defined in the Original
Guarantees) prior to the date of this Guaranty and nothing contained in this
Guaranty shall operate to release Guarantor from any such rights or
obligations.


 


[Remainder
of page intentionally left blank.]


 


13

















 


WITNESS the execution
hereof under seal as of the date above first written.


 


	
   

  	
  FIVE STAR QUALITY CARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  Bruce J. Mackey Jr.

  
	
   

  	
   

  	
  President

  



 


LANDLORD HEREBY CONSENTS TO THE EXECUTION AND
DELIVERY OF THIS GUARANTY BY GUARANTOR AND FURTHER ACKNOWLEDGES AND AGREES TO
THE PROVISIONS OF SECTION 23 OF THIS GUARANTY.


 


	
  SNH FM FINANCING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David J. Hegarty

  	
   

  
	
   

  	
  David J. Hegarty

  
	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  SNH FM FINANCING TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David J. Hegarty

  	
   

  
	
   

  	
  David J. Hegarty

  
	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  ELLICOTT CITY LAND I, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David J. Hegarty

  	
   

  
	
   

  	
  David J. Hegarty

  
	
   

  	
  President

  



 


[SIGNATURE PAGE TO
AMENDED AND RESTATED GUARANTY AGREEMENT]