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EXHIBIT 2.2.5
SUPPLEMENTAL AGREEMENT WITH RESPECT
TO ASSET PURCHASE AGREEMENT
This Supplemental Agreement With Respect To Asset Purchase
Agreement is
made this 30th day of September, 2004 by and among FORTRESS NBA
ACQUISITION,
LLC, a Delaware limited liability company, FORTRESS INVESTMENT
FUND II LLC, a
Delaware limited liability company (collectively, "Fortress"),
THE NATIONAL
BENEVOLENT ASSOCIATION OF THE CHRISTIAN CHURCH (DISCIPLES OF
CHRIST), a Missouri
not-for-profit corporation, and each of its affiliated companies
signatory
hereto (collectively, "NBA"), and the Official Committee of
Residents appointed
in the Chapter 11 Case of NBA (the "Residents Committee").
WHEREAS, Fortress and the NBA have entered into an Asset
Purchase
Agreement (the "APA") dated September 3, 2004; and
WHEREAS, Fortress, the NBA and the Residents Committee wish to
supplement
the APA for the purposes, on the terms and conditions and in
consideration of
the mutual undertakings herein provided for;
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, Fortress, the NBA
and the Residents
Committee hereby agree as follows, any terms used herein having
the same meaning
for purposes hereof as in the APA :
1. Notwithstanding Section 5.06(b)(xv) of the APA regarding the
effect
of the Final Order and Stipulation dated May 6, 2004
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regarding the Debtors' Motion to Maintain and Honor
Obligations
Relating to Entrance Fee Programs at the Debtors' Senior Care
Living
Facilities(1) (the "May 6 Order"), Purchaser shall be obligated
to
refund Entrance Fees as follows: Any resident who moved into
a
Facility prior to February 3, 2004, and vacates his/her
Apartment at
such Facility on or after the Closing (as defined in the APA)
and
who is entitled to the refund of Entrance Fees under the terms
of a
Occupancy Agreement executed by such resident, and whose
Apartment
is (or has been) reoccupied on or after the Closing (as defined
in
the APA) by an incoming resident (unless such resident's
existing
Occupancy Agreement provides for the refund of Entrance Fees at
a
time that is prior to reoccupation of such Apartment, in which
case
the payment of any refund shall occur at the time set forth in
such
Occupancy Agreement), shall be entitled to an Entrance Fee
refund
equal to 75% (or the percentage set forth in the former
resident's
Occupancy Agreement, if different) of the original Entrance Fee
paid
by such former resident, regardless of the amount or whether any
new
Entrance Fee is paid by such incoming resident, subject however
to
any setoff provisions provided in such former resident's
Occupancy
Agreement.
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(1) For purposes of this paragraph, capitalized terms used
herein not defined
herein shall have the meanings ascribed to them in the May 6
Order.
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2. The phrase "average occupancy rate" contained in Section
2.11(a)(ii)
of the APA shall mean the average daily occupancy rate of a
Facility's independent living units during any immediately
trailing
90-day period during the one year-period subsequent to Closing
(as
such term is defined in the APA) the acquisition of such
Facility by
Fortress from NBA.
3. For purposes of calculating whether a Facility's occupancy
rate as
of the Closing (as such term is defined in the APA) is at least
98%
of such Facility's occupancy rate as of the date of the APA
in
accordance with the proviso of Section 2.11(a)(ii) of the APA,
any
reduction in the occupancy rate as of the Closing shall not
be
deemed to be less than 98% of the occupancy rate as of the date
of
the APA if the reduction in such occupancy rate is due to a
reduction in occupancy of two or fewer independent living units
at
such Facility.
4. In order to determine the occupancy of a Facility for
purposes of
the proviso to Section 2.11(a)(ii) of the APA during any
immediately
trailing 90 day period during the one-year period subsequent
to
Closing, neither departures resulting from the death of a
resident
nor departures resulting from the transfer of a resident from
an
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