Exhibit 10.10 - Supplement to Provident Partnership Agreement


Exhibit
10.10
 

SUPPLEMENT
TO THE AMENDED AND RESTATED

AGREEMENT
OF LIMITED PARTNERSHIP

OF

PSLT OP,
L.P.

ESTABLISHING

CLASS A
COMMON UNITS

OF

LIMITED
PARTNERSHIP INTEREST

 

In
accordance with Sections 4.2 and 14.1 B(3) of the Amended and Restated Agreement
of Limited Partnership, dated as of August 3, 2004 (the “Partnership
Agreement”), the Partnership Agreement is hereby supplemented (the “Supplement”)
to establish a class of 1,824,377 common units of limited partnership interest
of PSLT OP, L.P. (the “Partnership”) which shall be designated “Class A Common
Units” having the rights, powers, privileges and restrictions, qualifications
and limitations as set forth below and which shall be issued to the parties and
in the amounts set forth on Schedule
A hereto.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Partnership Agreement.

 

WHEREAS,
the Partnership and Fortress Brookdale Acquisition LLC (the “Purchaser”) have
entered into a unit subscription agreement dated August 2, 2004 (the
“Subscription Agreement”) with respect to the purchase by the Purchaser of Class
A Common Units at a price of $15.00 per Class A Common Unit. 

 

WHEREAS,
pursuant to Section 4.2 of the Partnership Agreement, the Partnership is issuing
1,824,377 Class A Common Units to the Purchaser with the rights, powers,
privileges and restrictions, qualifications and limitations as set forth below
pursuant to the terms of the Subscription Agreement.

 

NOW
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

 


	 Section 1.	 Issuance of Class A Common
      Units



 

Pursuant
to Section 4.2 of the Partnership Agreement, the Partnership hereby issues
1,824,377 Partnership Interests (the “Class A Common Units”) to the parties and
in the amounts set forth on Schedule
A hereto.
The Class A Common Units shall have the rights, powers, privileges,
restrictions, qualifications and limitations (including, but not limited to,
limitations on transfer) of Limited Partners under the Partnership Agreement, as
supplemented and amended by the rights, powers, privileges, restrictions,
qualifications and limitations specified in Exhibit
I hereto.


 

The
admission of the Purchaser as an Additional Limited Partner of the Partnership
shall become effective as of the date of this Supplement, which shall also be
the date upon which the name of the Purchaser is recorded on the books and
records of the Partnership and Exhibit A to the Partnership Agreement is amended
to reflect such admission. 

 



	 Section 2.	 Amendment to Partnership
      Agreement.







 




Pursuant
to Section 14.1.B(3) of the Partnership Agreement, the General Partner, as
general partner of the Partnership and as attorney-in-fact for its Limited
Partners, hereby amends the Partnership Agreement as follows:

 

Article 1
of the Partnership Agreement is hereby amended by adding the following
definition of “Class A Common Units”:

 

“Class A
Common Units” means the units of limited partnership interest issued on August
3, 2004, in connection with the consummation of the transactions set forth in
the Unit Subscription Agreement, dated August 2, 2004, between the Partnership
and Fortress Brookdale Acquisition LLC. 

 




	 Section 3.	 Continuation of Partnership
      Agreement



 



The
Partnership Agreement and this Supplement shall be read together and shall have
the same force and effect as if the provisions of the Partnership Agreement and
this Supplement (including Exhibit I hereto) were contained in one document. Any
provisions of the Partnership Agreement not amended by this Supplement shall
remain in full force and effect as provided in the Partnership Agreement
immediately prior to the date hereof.

 

 























IN
WITNESS WHEREOF, the parties hereto have executed this Supplement to the
Partnership Agreement as of the 3rd day of August, 2004. 


 

 


	 	 GENERAL
      PARTNER:	 
	 	 	 	 
	 	 PSLT
      GP, LLC	 
	 	 	 	 
	 	 By: Provident
      Senior Living Trust, its sole member 	 
	 	 	 
	 	 	 
	 	 By:
      	 /s/
      Darryl W. Copeland, Jr.	 
	 	 	 Name:
      Darryl W. Copeland, Jr.	 
	 	 	 Title:
      Chief Executive Officer and President	 
	 	 	 	 
	 	 	 	 
	 	 EXISTING
      LIMITED PARTNERS:	 
	 	 	 	 
	 	 Provident
      Senior Living Trust	 
	 	 	 	 
	 	 	 	 
	 	 By:  	 /s/
      Darryl W. Copeland, Jr.	 
	 	 	 Name:
      Darryl W. Copeland, Jr. 	 
	 	 	 Title:
      Chief Executive Officer and President	 
	 	 	 	 
	 	 	 	 
	 	 CLASS
      A COMMON UNIT HOLDER:	 
	 	 	 	 
	 	 FORTRESS
      BROOKDALE ACQUISITION LLC	 
	 	 	 	 
	 	 	 	 
	 	 By:	 Fortress
      Registered Investment Trust, its managing member
	 	 	 	 
	 	 	 	 
	 	 By:
      	 /s/
      Randal A. Nardone	 
	 	 	 Name:
      Randal
      A. Nardone	 
	 	 	 Title:
      Authorized
      Signatory	 



 

 

 





















 

EXHIBIT
I

 

PSLT OP,
L.P.

 

DESIGNATION
OF THE RIGHTS, POWERS, PRIVILEGES, 

 

RESTRICTIONS,
QUALIFICATIONS AND LIMITATIONS 

 

OF THE
CLASS A COMMON LIMITED PARTNERSHIP UNITS

 

The
following are the terms of the Class A Common Limited Partnership Units
established pursuant to this Supplement: 

 

1.  Number. The
maximum number of authorized Class A Common Limited Partnership Units (the
“Class A Common Units”) shall be 1,824,377.

 

2.  Ranking. The
Class A Common Units shall rank on a parity with the Common Units in all
respects. 

 

3.  Percentage
Interest.
Percentage Interest in the Partnership (as defined in the Supplement to the
Partnership Agreement, dated August 3, 2004 (the “Supplement”) to which this
Exhibit I is attached) with respect to the Class A Common Units issued pursuant
to the Subscription Agreement (as defined in the Supplement) shall be equal to
the ratio of 1,824,377 (or such lesser number as are subscribed to by Purchaser)
divided by the total number of Partnership Units then outstanding; provided,
however, that in no event and notwithstanding anything in the Partnership
Agreement, the Subscription Agreement or the Supplement to the contrary,
Purchaser’s Percentage Interest in the profits and/or capital of the Partnership
shall at no time equal or exceed twenty-five percent (25%). 

 

4.  No
Liquidation Preference. The
Class A Common Units shall have no liquidation preference.

 

5.  Conversion. Except
as provided in Section 13 below, the Class A Common Units are not convertible
into any other property or securities of the Partnership. 

 

6.  Redemption
at the Option of the Partnership. Class A
Common Units will be redeemable at the option of the Partnership for the
consideration specified in Section 12 below, as determined in the sole and
absolute discretion of the General Partner.

 

7.  Allocation. As of
any given date, the aggregate amount of Partnership federal taxable income
allocated to a holder of Class A Common Units shall not exceed the aggregate
amount of cash distributed (including amounts deemed distributed pursuant to
Section 5.2 of the Partnership Agreement) to such holder. For purposes of this
determination, each such aggregate amount shall be calculated during the period
beginning on the date of issuance of the Class A Common Units to such holder
through the date on which such determination is to be made. Upon a
redemption of all or any portion of the Class A Common Units, the Partnership
agrees that it will use the “interim closing of the books” method for purposes
of allocating Partnership federal taxable income and loss to the redeeming Class
A Common Unit holder. 

 

8.  Parity
with REIT Distributions.
Concurrently with any dividend distribution by the Company with respect to REIT
Shares, the Partnership shall distribute an equivalent amount to each Class A
Common Unit holder, so that each Class A Common Unit holder receives an amount
per Class A Common Unit in the Partnership held by such Partner equal to the
dividend amount per REIT Share paid by the Company.

 

9.  Record
Date of Distributions.In the
event that a distribution is paid with respect to REIT Shares after the
redemption of a Class A Common Unit, and such distribution has a record date
prior to such redemption (such that the redeeming holder of Class A Common Units
does not otherwise receive such distribution), the redeeming holder of Class A
Common Units will be entitled to an additional redemption payment, in cash,
equal to the amount per REIT Share to be paid in such distribution.

 

10.  Transfer
Upon Liquidation or Redemption.
Notwithstanding anything in the Partnership Agreement to the contrary, in the
event of a Seller Liquidation or a Seller Redemption, Purchaser shall be
entitled to transfer all or a portion of its Class A Common Units to one or more
of the Selling Stockholders, to the maximum extent necessary to effectuate such
Seller Liquidation or Seller Redemption. The terms “Seller Liquidation,” “Seller
Redemption”, and “Selling Stockholders” shall have the meaning set forth for
such terms as in that certain Amendment No. 1 to Stock Purchase Agreement, by
and among Purchaser, the Company and BLC Senior Holdings, Inc, a Delaware
corporation, dated on or about the date hereof. 

 

11.  Voting
Rights.

 

(a)
Holders of Class A Common Units shall have the right to vote on all matters
submitted to a vote of the holders of Common Units; holders of Class A Common
Units and Common Units shall vote together as a single class, together with any
other class or series of units of limited partnership interest in the
Partnership upon which like voting rights have been conferred. In any matter in
which the Class A Common Units are entitled to vote, including an action by
written consent, each Class A Common Unit shall be entitled to one vote.


 

(b) In
addition to, and not in limitation of, the provisions of Section 7(a) above (and
notwithstanding anything appearing to be contrary in the Partnership Agreement)
, the Company shall not, without the affirmative consent of the holders of
sixty-six and two-thirds percent (66 2/3%) of the then outstanding Class A
Common Units take any action that would materially and adversely alter, change,
modify or amend the rights, powers or privileges of the Class A Common Units
wherein such alteration, change, modification or amendment would not similarly
alter, change, modify or amend the rights, powers or privileges of the Common
Units.

 

12.  Redemption
at Holder’s Election.

 

Holders
of Class A Common Units shall have the right to redeem their Class A Common
Units in accordance with the Redemption Right pursuant to Section 8.6 of the
Agreement, on the same terms and subject to the same conditions and limitations
as holders of Common Units, including, without limitation, the right of the
holder to receive the Cash Amount upon the exercise of the Redemption Right and
the right of the General Partner to acquire, in its sole and absolute
discretion, any Class A Common Units that are redeemed in accordance with the
Redemption Right by paying to the Redeeming Partner either the Cash Amount or
the REIT Shares Amount; provided
that, for
purposes of the Class A Units only, the Cash Amount shall be the greater of
$15.00 per Class A Common Unit or an amount of cash per Class A Common Unit
equal to the Value on the Valuation Date of the REIT Shares Amount.


 

13.  Conversion
of Class A Common Units upon Acquisition by General Partner. In the
event the General Partner acquires any of the Class A Common Units in connection
with the exercise by a holder of the Redemption Right, such Class A Common Units
acquired by the General Partner shall automatically be converted into an equal
number of Common Units. 

 





















Schedule
A






 


	
      Name
      and Address

       
	
      Number
      of Class A Common Units

       

	
      Fortress
      Brookdale Acquisition LLC

      c/o
      Fortress Investment Group LLC

      1251
      Avenue of the Americas, 16th
      Floor

      New
      York, New York 10020

      Attention:
      Mr. Randal A. Nardone

       
	
      1,824,377