Exhibit 10.39
CONFIRMATION OF GUARANTEES AND
CONFIRMATION AND
AMENDMENT OF OTHER INCIDENTAL DOCUMENTS
THIS CONFIRMATION OF GUARANTEES
AND CONFIRMATION AND AMENDMENT OF OTHER INCIDENTAL
DOCUMENTS (this “
Confirmation ”) is made as of December 22, 2006 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 “ Landlords
”).
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 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 September 30, 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
Agreement, dated as of November 1, 2006, that certain Ninth
Amendment to Second Amended and Restated Lease, dated as of
November 1, 2006 and that certain Tenth Amendment to Second Amended
and Restated Lease Agreement, dated as of November 6, 2006
(effective as of November 5, 2006) (as so amended, the “
Consolidated Lease ”), the Landlords lease 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 obligations of the
Tenant with respect to the Consolidated Lease are guaranteed by
those certain Guaranty Agreements described on Exhibit A
attached hereto (collectively, the “ Guarantees
”); and
WHEREAS, the payment and performance obligations of the
Tenant with respect to the Consolidated Lease 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 the Consolidated Lease); and
WHEREAS , pursuant to an Eleventh Amendment to Second
Amended and Restated Lease Agreement, dated as of the date hereof
(the “ Eleventh Amendment ”), the Consolidated
Lease is being amended to remove that certain premises known as
Christopher East Health & Rehabilitation Center and located at
1132 E. Knapp Street, Milwaukee, Wisconsin (the “
Terminated Premises ”), as more particularly described
in the Eleventh Amendment;
WHEREAS, pursuant to the terms of that certain Partial
Termination of Sublease (the “ Partial Termination
”), dated as of the date hereof, between Tenant and Five Star
Quality Care-WI, LLC (the “ Wisconsin Subtenant
”), Tenant and the Wisconsin Subtenant are terminating that
certain Sublease Agreement, dated as of December 31, 2001, as
amended from time to time, with respect to the Terminated
Premises;
WHEREAS, in connection with, and as a condition precedent
to, the execution of the Eleventh Amendment by the Landlords, the
Landlords have required that the parties hereto confirm that the
Guarantees and the other Incidental Documents remain in full force
and effect and apply to the Consolidated Lease as amended by the
Eleventh Amendment; and
WHEREAS, in connection with the execution of the Eleventh
Amendment and the Partial Termination, the parties hereto wish to
amend certain of the Incidental Documents, including (i) the
Security Agreement, dated as of December 31, 2001, by and among
certain of the Subtenants and certain of the Landlords, as amended
and confirmed from time to time (the “ Subtenant Security
Agreement ”); (ii) the Security Agreement,
dated
