CONFIRMATION OF GUARANTEES AND CONFIRMATION AND AMENDMENT OF OTHER INCIDENTAL DOCUMENTS

Exhibit 10.38

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 November 6, 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 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 Agreement dated as of November 1, 2006 and that certain Ninth Amendment to Second Amended and Restated Lease dated as of November 1, 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 a Tenth Amendment to Second Amended and Restated Lease Agreement, dated as of the date hereof (the “Tenth Amendment”), the Consolidated Lease is being amended to add certain property thereto, as more particularly described in the Tenth Amendment;

WHEREAS, the Tenant intends to enter into a sublease (the “Sublease”) with Morningside of Kentucky, Limited Partnership, a Delaware limited partnership (“Morningside-Kentucky”) to sublease the property being added to the Consolidated Lease pursuant to the Tenth Amendment to Morningside-Kentucky;

WHEREAS, in connection with, and as a condition precedent to, the execution of the Tenth 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 Tenth Amendment; and

WHEREAS, in connection with the execution of the Tenth Amendment and the Sublease, 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 as of December 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 Membership Interests Agreement, dated as of May 6, 2005, made by the Subtenant Pledgors for 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 conditions herein set forth;

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, the parties hereto hereby agree as follows:

1.             Amendment of Subtenant Security Agreement.  The Subtenant Security Agreement is hereby amended by: (i) deleting the following paragraph 30 from Exhibit A attached thereto:

25.           Amended and Restated Sublease Agreement, dated September 1, 2006, by and between Five Star Quality Care

Trust, a Maryland business trust, and Morningside of Kentucky, Limited Partnership, a Delaware limited partnership.

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

Second Amended and Restated Sublease Agreement, dated November 6, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, and Morningside of Kentucky, Limited Partnership, a Delaware limited partnership.

and (iii) inserting the following in the appropriate order on Schedule 2 attached thereto:

                2.             Amendment of Tenant Security Agreement.  The Tenant Security Agreement is hereby amended by inserting the following in the appropriate order on Schedule 2 attached thereto:

                3.             Amendment of Subtenant Pledge Agreement.  The Subtenant Pledge Agreement is hereby amended by (i) deleting the following paragraph 25 from Exhibit A attached thereto:

34.           Amended and Restated Sublease Agreement, dated June 3, 2005, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Morningside of Kentucky, Limited Partnership, a Delaware limited partnership, as subtenant.

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

Second Amended and Restated Sublease Agreement, dated November 6, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Morningside of Kentucky, Limited Partnership, a Delaware limited partnership, as subtenant.

4.             Confirmation of Guarantees.  Each of the parties to the Guarantees hereby confirms that all references in the Guarantees to the “Master Lease” or the “Lease” shall refer to the Consolidated Lease as amended by the Tenth Amendment and the Guarantees are hereby ratified and confirmed in all respects.

5.             Confirmation of Other Incidental Documents.  Each of the parties to the Incidental Documents (other than the Guarantees) hereby confirms that all references in such Incidental Documents to the “Master Lease”, the “Lease” or the “Second Amended Lease” shall refer to the Consolidated Lease as amended by the Tenth Amendment and that such Incidental Documents, as amended by this Confirmation, are hereby ratified and confirmed in all respects.

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

[Signatures on following page.]

IN WITNESS WHEREOF, the parties hereto have caused this Confirmation to be duly executed, as a sealed instrument, as of the date first set forth above.

The following exhibit has been omitted and will be supplementally furnished to the Securities and Exchange Commission upon request:

Exhibit A