EXHIBIT 2.2.3
THE NATIONAL BENEVOLENT ASSOCIATION OF THE CHRISTIAN CHURCH
(DISCIPLES OF XXXXXX)
00000 XXXXXX XXXXX
XX. XXXXX, XXXXXXXX 00000
April 6, 2005
Fortress NBA Acquisition, LLC
c/o Fortress Investment Group LLC
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Asset Purchase Agreement dated as of September 3, 2004 (the "APA"),
as supplemented by that certain Supplemental Agreement With Respect
to Asset Purchase Agreement dated as of September 30, 2004 (the
"Supplemental Agreement") and amended by that certain letter
agreement dated March 9, 2005 (the "Letter Agreement" and, together
with the APA and the Supplemental Agreement, collectively, the
"Agreement"), and
Receivables Purchase Agreement dated as of March 7, 2005, as amended
by that certain letter agreement dated as of March 15, 2004 (the
"RPA").
Ladies and Gentlemen:
This letter reflects the agreement and understanding among The National
Benevolent Association of the Christian Church (Disciples of Xxxxxx) (the
"Company") and the undersigned affiliated companies thereof (each a "Company
Subsidiary" and, together with the Company, collectively the "Sellers") and
Fortress NBA Acquisition, LLC ("Purchaser"), the undersigned designees or
assignees of Purchaser under Sections 2.05(g) and 11.03 of the Agreement (the
"Transferees") and Fortress Investment Fund II LLC ("Guarantor") in connection
with the Contemplated Transactions under the Agreement among the Sellers and
Purchaser, the initial Closing of which (the "Initial Closing") the parties are
consummating on the date hereof (the "Initial Closing Date"). (Certain other
persons are also parties to the Supplemental Agreement.). In addition, this
letter reflects the agreement and understanding among the Sellers, FIT NBAS LLC
(the "Receivables Purchaser") and the Guarantor in connection with the purchase
and sale of receivables under the RPA, which is to be effectuated in part on the
date hereof. Capitalized terms used herein and not defined herein have the
meanings provided by the Agreement.
1. In regard to Section 1.01(q) of the Agreement, Sellers and Purchaser
agree that the Intellectual Property to be included in the Acquired Assets shall
be all of the Intellectual Property owned by the Company and the Company
Subsidiaries, other than:
(i) the Seller Marks and any Internet domain names associated therewith, (ii)
the "What we do best is care" servicemarks (including logo), which have been
registered in the name of the Company (PTO Registration Nos. 1,367,043, 977,055
and 977,333), and (iii) the "Fellowship of Xxxx" tradename, logo and/or
servicemark used by the Company (notwithstanding any previous use of any thereof
in the Business as conducted before the Closing). Purchaser and Transferees
acknowledge that Purchaser's obligation to cease to make any use of the Seller
Marks under Section 1.07 of the Agreement by the date provided therein includes
the obligation to cease using the abbreviation "NBA" in the corporate name of
each of the Transferees and each Transferee hereby agrees that it will amend its
articles of organization, operating agreement and other organizational documents
in order to effect a name change with respect to such Transferee.
2. In regard to Section 1.05 of the Agreement, Purchaser and Transferees
confirm that following the Closing of the purchase and sale of any of the
Facilities (other than the NBA Oklahoma Christian Retirement Community Facility
(the "Oklahoma Facility") and the NBA California Christian Home Facility (the
"California Facility")), none of them will require the use of or any benefit
under any of the Shared Assets or Shared Contracts with respect to any such
Facility and Purchaser, Transferees and Sellers agree that no arrangement for
the sharing of any of the Shared Assets or Shared Contracts, as contemplated
under said Section, shall be established at or as of the Closing of the purchase
and sale of any of such Facilities and Sellers shall be under no obligation to
establish any such arrangement subsequently. Whether there will be any
arrangements regarding Shared Assets or Shared Contracts in respect of the
Oklahoma Facility or the California Facility, and if so the nature and extent of
such arrangements, will be addressed in a separate agreement or agreements in
connection with the Closing or Closings of the purchase and sale of such
Facilities.
3. In regard to Section 1.06 of the Agreement, Purchaser and Transferees
confirm that following the Closing of the purchase and sale of any Facility
(other than the Oklahoma Facility and the California Facility) none of them will
require any Transitional Services to be provided by Sellers, other than those
referred to in paragraph 3.F. of the Letter Agreement, which services are to be
provided on the terms established by said paragraph 3.F. In the event any
similar services are nevertheless requested of Sellers by Purchaser or a
Transferee, Purchaser or the Transferee shall reimburse Sellers for the
out-of-pocket cost reasonably incurred by Sellers in providing such services and
the costs and expenses of Sellers and their respective agents for time expended
in responding to such requests at mutually agreeable hourly rates. Whether there
will be any arrangements regarding Transitional Services in respect of the
Oklahoma Facility or the California Facility, and if so the nature and extent of
such arrangements, will be addressed in a separate agreement or agreements in
connection with the Closing or Closings of the purchase and sale of such
Facilities. Further in regard to Section 1.06 of the Agreement, Purchaser and
Transferees shall provide, or cause to be provided, to Sellers (and their
Representatives), as Sellers may reasonably request, but in respect of a
Facility only after the Closing of the Facility, (1) access to the books,
records and files pertaining to the Business in the possession or control of
Purchaser or any of the Transferees or any agents
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thereof, (2) the services and cooperation of the employees of, and any
management company or consultants retained by, Purchaser or any of the
Transferees and (3) the use (under the control of such employees, management
company or consultants) of the information technology systems or other
administrative facilities used in the conduct of the Business pertaining to a
Facility following the purchase by Purchaser or a Transferee of a Facility, in
each case for a period not exceeding the period hereinafter provided, as shall
be reasonably necessary to permit the Sellers (and their Representatives) to
prepare or complete in respect of the period prior to, or events occurring prior
to, the Closing of Purchaser's or a Transferee's purchase of a Facility (A) any
payroll payments or payroll or employee benefit notices or reports (including
employee withholding tax reports) for the payroll or benefit period in which the
Closing occurs in respect of a Facility and the preparation of any annual
reports (such as Forms W-2) with respect to the compensation or employee
benefits of any persons who were employed by any of the Sellers in the Business
in the year in which the Closing occurs in respect to a Facility, (B) the
completion of Medicare/Medicaid reimbursement applications or reports for the
period in which Sellers operated a Facility and the resolution of any disputes
with respect thereto, (C) any Tax Returns required to be prepared by any of the
Sellers for any period within which the Closing in respect of a Facility occurs
or which ends upon such Closing, (D) any reports relating to the Contemplated
Transactions required in connection with the administration of the Bankruptcy
Cases and (E) the completion of audits of the financial statements of any of the
Sellers for the years 2003, 2004 and 2005 (it being understood, for the
avoidance of doubt, that Purchaser and the Transferees shall not have any
obligation to prepare or complete any of the items set forth in the forgoing
clauses (A) through (E), but shall be obligated only to use its commercially
reasonable efforts to provide Sellers information in the possession of Purchaser
or the Transferees or any management company or consultants retained thereby, as
applicable, that would aid in such preparation and completion as set forth in
this paragraph 3). Purchaser, Transferees and their respective employees and any
management company or consultants retained thereby shall be required to provide
such access and services only during regular business hours and upon reasonable
notice and only at the Facilities or at any location where such books, records
or files are ordinarily kept and only in accordance with such safeguards as may
be required by any applicable privacy laws. Subject to such privacy
requirements, Sellers and their designated Representatives shall have the right
to make copies of any such books, records and files; provided, however, that any
such access or copying shall be had or done in such a manner so as not to
unreasonably interfere with the normal conduct of the Business by Purchaser or
the Transferees and shall, if more than incidental in extent, be at Sellers'
expense. Such services shall be so provided by Purchaser and Transferees to
Sellers and their Representative for a period of up to six (6) months after the
Closing of the purchase and sale of the last of the Facilities provided by the
Agreement to be purchased by Purchaser from Sellers and for (i) such additional
period, not extending past May 31, 2006, during which such annual or other
reports or audits are customarily prepared and (ii) to the extent necessary, at
such other times as is reasonably necessary for Sellers to resolve any such
claims, controversies or disputes. Sellers shall reimburse Purchaser or the
Transferees for (a) the out-of- pocket costs reasonably incurred by Purchaser or
a Transferee in providing such services to Sellers and (b) costs
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and expenses of Purchaser, a Transferee or their respective property managers,
as applicable, for time expended in responding to requests of Sellers and their
designated Representative at mutually agreeable hourly rates. Whether there will
be any such arrangements regarding the Oklahoma Facility or the California
Facility, and if so the nature and extent of such arrangements, will be
addressed in a separate agreement or agreements in connection with the Closing
or Closings of the purchase and sale of such Facilities. Nothing contained in
this section shall limit Sellers' rights or Purchaser's or the Transferees'
obligations in respect of (i) any apportionments to be made in connection with
the determination of the Purchase Price, or any adjustments to the Purchase
Price, to be made as provided by the Agreement or (ii) under Section 6.02 of the
Agreement with regard to Purchaser and the Transferees preserving and providing
to Sellers or their Representatives access to the business records and files
transferred by Sellers to Purchaser and/or any Transferee pursuant to the
Agreement.
4. In regard to Sections 2.03, 2.04 and 2.05(a) and (d)of the Agreement,
the parties acknowledge that at the Initial Closing Purchaser shall receive a
credit against the Final Purchase Price payable at such Initial Closing in the
amount of $122,578.62, representing the net proceeds of the sale by Homes of
Cypress, Inc. ("HOC") of two unimproved Equity Home lots (as further described
in documents relating thereto previously provided by Sellers to Purchaser) that
are included among the Acquired Assets and that were sold by HOC after the
effectiveness of the Agreement (the "Cypress Lots"). Further to Sections 5.04
and 5.10, Purchaser, Transferees and the Sellers acknowledge that Lenoir, Inc.
entered into two agreements to make improvements to certain residential cottage
units at the Lenoir Facility in connection with the occupancy of such cottage
units (the "Lenoir Agreements") (as further described in documents previously
delivered to Purchaser). The Sellers, Purchaser and Transferees acknowledge and
agree that the Lenoir Agreements are supplemental to the Residency Agreements
entered into by Lenoir Inc. with respect to the occupancy of such cottage units
and, accordingly, the Lenoir Agreements constitute "Residency Agreements" as
defined in the Assignment and Assumption of Leases, Other Residency Agreements
and Security Deposits executed and delivered by Lenoir Inc. in connection with
the transfer and conveyance of the Acquired Assets relating to the Lenoir
Facility. In addition, the parties acknowledge that HOC has entered into
contracts for the construction of homes on the Cypress Lots (copies of which
have previously been provided to Purchaser) and Purchaser has elected, as
contemplated by Section 1.01(k) of the Agreement, not to assume such contracts
as Assumed Contracts under the Agreement and, accordingly, HOC shall, upon and
from and after the Initial Closing, be responsible for the performance of HOC's
obligations under such contracts, which shall be considered Excluded
Liabilities. In its performance of such contracts, HOC agrees to comply with,
and enforce any obligations of its contractors to comply with, any restrictions
imposed by law or under the applicable indenture of restrictions and covenants
affecting the Equity Homes at the Cypress Facility, or otherwise reasonably
established on a non-discriminatory basis for the Cypress Facility, with regard
to and to the extent that such restrictions pertain to the conduct of any
construction activity on the Cypress Lots.
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5. Without limiting Sellers' obligations under Section 6.01 of the
Agreement, Sellers shall execute, in blank, certificates of title to all
vehicles that are included in the Acquired Assets with respect to a Facility (as
more particularly described on Schedule 5 attached hereto) within 60 days
following the Closing of the purchase and sale of such Facility. The Sellers and
the Purchaser shall each bear 50% of the vehicle registration and sales taxes
due in connection with the sale of such vehicles.
6. Sellers, Purchaser and Transferees acknowledge and agree that certain
of the Sellers have on and as of the date hereof transferred, or shall on and as
of the Closing Date in respect of the purchase of a Facility subsequently
purchased by Purchaser or a Transferee pursuant to the Agreement transfer, to
the pertinent Transferee (as previously provided), as successor to the pertinent
Seller in the ownership and operation of the applicable Facility, certain
patient trust accounts (collectively, the "Patient Trust Accounts") containing
funds (collectively, the "Patient Trust Funds") that are held by such Seller in
trust for the benefit of certain of the residents of such Facility. The
beneficiaries of the Patient Trust Accounts and Patient Trust Funds
(collectively, the "PTF Residents") and the respective Patient Trust Accounts
and amounts of Patient Trust Funds held for the benefit of such PTF Residents as
of the Initial Closing Date (or such other date as is indicated) are indicated
in documents previously delivered to Purchaser. With respect to any Facility
that is not being conveyed to Purchaser or a Transferee on and as of the Initial
Closing Date, the same information so provided to Purchaser shall be revised and
updated as of the Closing Date with respect to such Facility to reflect the
Patient Trust Accounts and Patient Trust Funds held by the owner or operator of
such Facility on and as of such Closing Date (or the most recent date for which
such information is available). Each of the Transferees to which Patient Trust
Accounts have been transferred (each, a "Recipient" with respect to the Patient
Trust Accounts transferred to it) shall, upon the completion of the transfer of
the Patient Trust Accounts to such Recipient and written notice thereof to the
Company, acknowledge to Sellers receipt of the applicable Patient Trust Accounts
and the Patient Trust Funds contained therein, and hereby agrees that it shall
comply with all applicable laws in connection with the custody, disposition,
investment, accounting and all other aspects of dealing with such Patient Trust
Accounts and the Patient Trust Funds contained therein and, together with the
Purchaser, hereby agrees to indemnify and hold the Sellers harmless from any and
all claims, demands, actions, suits, liabilities and obligations accruing or
arising with respect to such Patient Trust Accounts and Patient Trust Funds on
and after the Closing Date with respect to the pertinent Facility and/or as a
result of any action or inaction on the part of the Recipients with respect
thereto. To the extent necessary or appropriate to fully effectuate the transfer
of Patient Trust Accounts contemplated by this Section 6, Sellers hereby assign
to Purchaser and the Transferees, as applicable, and Purchaser and the
Transferees, as applicable, hereby accept and assume from Sellers, all of
Sellers' rights and obligations under the documentation governing the Patient
Trust Accounts, solely with respect to obligations accruing from and after the
applicable Closing Date.
7. Sellers, Purchaser and Transferees acknowledge that (a) certain of the
Sellers have caused certain surety bonds to be issued and/or made certain
deposits in
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order to secure their respective obligations with respect to the Patient Trust
Funds as more particularly described on Schedule 7 attached hereto and made a
part hereof (collectively, the "PTF Collateral") and (b) as regards the Cypress
Village Facility, Cypress Village Inc. ("Cypress SU") has provided a cash
deposit in the amount of $13,900 to the Agency for Health Care Administration in
connection with Cypress SU's nursing home license (the "Cypress Escrow").
Purchaser and Transferees hereby agree that, within thirty (30) days following
the Closing Date with respect to a Facility, they shall provide substitute
surety bonds and/or make the necessary deposits with the applicable governmental
authorities and otherwise take all reasonable actions in order to cause the
governmental authorities, in accordance with applicable law, to release, cancel,
terminate and/or return the PTF Collateral and the Cypress Escrow to the
applicable Sellers as soon as practicable following the applicable Closing Date.
8. Purchaser and FIT NBA Skyline LLC ("Skyline Transferee"), as the
Transferee of the Village at Skyline Facility, hereby agree that the Assumed
Contracts respecting the Village at Skyline Facility includes an agreement
between Village at Skyline ("Skyline SU"), as the operator of the Village at
Skyline Facility, and $36,096.08 (the "Smart Card Contractor"), pursuant to
which the Smart Card Contractor is responsible for tracking and documenting
balances on certain "smart cards" that have been issued to residents and
employees at the Village at Skyline Facility who have paid certain funds to
Skyline and who are then entitled to a credit in the amount of such funds
against the purchase of goods and services sold and/or otherwise provided by the
Village at Skyline Facility. Purchaser and Skyline Transferee hereby agree that,
following the Initial Closing, they will honor any remaining balances on such
"smart cards" by permitting the applicable residents and employees to utilize
such remaining balances as a credit against the purchase price of goods and
services at the Village at Skyline Facility (in the amounts more particularly
reflected in the documents previously provided) and Sellers acknowledge that
Purchaser shall be entitled to a credit against the Final Purchase Price in the
aggregate amount of such remaining balances.
9. Further to Sections 5.04 and 5.10 of the Agreement, Purchaser,
Transferees and Sellers acknowledge that HOC has entered into certain real
estate listing agreements with respect to the resale of certain Equity Homes at
the Cypress Village Facility, and in connection therewith is holding $20,000 in
an escrow account (the "Escrowed Funds"). Sellers agree that they shall, on or
as soon as practicable after the Closing Date, (i) transfer the Escrowed Funds
to an escrow account as the Purchaser and the Transferees shall designate and
(ii) assign such listing agreements to the applicable Transferee.
10. Notwithstanding anything to the contrary in Section 2.04 of the
Agreement, Sellers, Purchaser and Transferees agree that the apportionments and
adjustments with respect to Real Property Expenses and Rents to be made under
Section 2.04(a) and (c) of the Agreement have been for purposes of the Initial
Closing, and shall be for any subsequent Closings, calculated on an agreed but
estimated basis and have not been calculated on the basis of all the relevant
information and final agreement among
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the parties as to the pertinent amounts contemplated by Section 2.04(a).
Accordingly, such estimates shall be reconciled and confirmed by the parties,
and adjusted by appropriate payments among the parties, after a Closing, as
follows: Purchaser (with the cooperation of the Sellers in the preparation
thereof) shall deliver a written statement setting forth a reasonably detailed
good faith calculation of the apportionments and adjustments contemplated by
Section 2.04(a) of the Agreement for each of the Real Property Assets acquired
by it at such Closing as soon as practicable after the end of the month in which
such Closing occurs showing the Real Property Expenses paid and Rents received
as of the last day of such month and attributable to such month (as determined
in accordance with Section 2.04(a)(ii)). Sellers shall have the right to review
such written statement and shall notify Purchaser of any objection thereto
within five (5) Business Days after the receipt thereof. Sellers and Purchaser
shall negotiate in good faith to attempt to resolve any such objection made by
Sellers, provided that, if such parties are unable to agree upon a reasonably
detailed calculation of such apportionments within twenty (20) Business Days
after Sellers have advised Purchaser of any objections, such dispute shall be
resolved by the Mediator. If Sellers do not notify Purchaser of any such
objection within such five (5) Business Day period, Sellers shall be deemed to
have agreed with the apportionments specified in Purchaser's written statement.
Promptly after the last of the Closings under the Agreement and the resolution
of any objection by Sellers, Sellers shall pay to Purchaser or Purchaser shall
pay to Sellers the amount required by such reconciliation of the estimates used
at the Closings. For purposes of the RPA, any Rents (including Medicare and
Medicaid reimbursements) payable for the month in which a Closing occurs shall
be excluded in determining the accounts receivable to be purchased by the
Receivables Purchaser, inasmuch as any such Rents receivable as of such Closing
shall have been dealt with in accordance with the foregoing provisions of this
Section, and the Receivables Purchaser shall receive a credit, when the
adjustments provided by the RPA to the purchase price payable under the RPA are
made, with any Rent payments for any month prior to the month in which the
Closing occurred (as determined in accordance with Section 2.04(a)(ii)) that
were received by Sellers from the beginning of the month in which the Closing
occurred until the date of such Closing.
11. Sellers, Purchaser and Transferees acknowledge, consistent with clause
(ii) of the second sentence of the definition of "Business" and Sections 1.02(a)
and (i) of the Agreement, that Sellers by the Agreement and the instruments of
transfer provided for thereby are not transferring to Purchaser or any
Transferee at any Closing any right, interest or expectancy which Sellers or any
of their Affiliates may have in any charitable contributions in any form which
may be made from and after the date hereof to or for the benefit of Sellers or
any of their Affiliates, whether or not specifically related to a Facility. In
the event Purchaser or any Transferee or any Affiliate thereof comes into
possession or any control of any such charitable contribution, or an officer or
equivalent comes into information giving it a reasonable basis to believe that
it will come into possession or any control of such a charitable contribution,
Purchaser or such Transferee will use its commercially reasonable efforts
promptly to advise the Company of such information or will return possession or
control of such charitable contribution to the party making such charitable
contribution with an explanation directing it to contact the
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Company or will deliver (at the Company's sole cost and expense) possession or
any such control of such charitable contribution to the Company (or, at the
Company's direction, to another Seller), as the case may be, and, in such
regard, shall execute and deliver such instruments of conveyance or transfer and
take such other action as may be reasonably requested by the Company (at the
Company's sole cost and expense) to implement the delivery of possession or any
such control of such charitable contribution to the Company. Notwithstanding the
foregoing provisions of this paragraph, (i) neither Purchaser nor any Transferee
shall be required to return a gratuitous contribution to the party making such
contribution or deliver same to any Seller if a court of competent jurisdiction
determines that such contribution was under all the circumstances intended to be
made to Purchaser, a Transferee or an Affiliate thereof, notwithstanding that it
is a for-profit enterprise, and (ii) the Acquired Assets shall include all of
the Real Property Assets and all personal property related to the Business,
except for the items specifically excluded in the parenthetical beginning in the
third line of Section 1.01(b) of the Agreement, regardless of whether same were
originally donated to Sellers or its Affiliates as charitable contributions.
12. Purchaser and each Transferee hereby acknowledge and agree that,
notwithstanding any transfer of ownership of any Facility by it after the
Closing (including in any transaction occurring simultaneously or immediately
following the Closing), Purchaser or the pertinent Transferee will itself
comply, and/or any such transfer agreement entered into with a transferee will
provide for the transferee to comply, with both (i) the provisions of the
Agreement pertaining in any way to the operation of such Facility that by the
terms of the Agreement are to be performed after the applicable Closing and (ii)
the provisions of this letter pertaining in any way to the operation of the
Facility (which shall be considered to include the provisions of Sections 3, 7,
and 11 hereof) that by their terms are to be performed after the applicable
Closing.
13. Purchaser hereby agrees that, if (i) the Closing of the purchase and
sale of the California Facility has occurred before the purchase and sale of the
Oklahoma Facility and (ii) the parties' obligations to purchase and sell the
Oklahoma Facility under the Agreement have terminated (i.e., without the Closing
of the purchase and sale of the Oklahoma Facility having occurred), Purchaser
will promptly, but in any event within one Business Day after the date of such
termination, pay to Sellers on account of the California Facility $500,000 by
wire transfer of immediately available funds to an account designated by
Sellers, which amount shall be in addition to the amount paid by Purchaser for
the California Facility at the Closing of the purchase and sale thereof. If the
Closing of the Oklahoma Facility occurs prior to the Closing of the California
Facility, the purchase price of the Oklahoma Facility shall be $9,200,000, with
an additional $500,000 (the "Additional Oklahoma Consideration") payable to
Sellers with respect to the Oklahoma Facility if and when the Closing of the
California Facility occurs, provided if the Closing of the California Facility
does not occur, the Additional Oklahoma Consideration shall not be payable.
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14. It is agreed that the Purchaser and the Transferees shall have the
right to cash or deposit checks and other instruments for payment of rent or
other charges at the Facilities from and after the Closing Date for such
Facility, regardless of the named recipient on such check or other instrument
and/or the date of such check or other instrument. Such right shall not limit
the parties obligations to reconcile apportionments and adjustments in
accordance with paragraph 10 above.
15. Purchaser, the pertinent Transferee and Sellers acknowledge that at
the Closing the Company shall transfer all of its rights in and to the trust
account at Cypress Village referred to in Section 1.01(o) of the Agreement,
which shall contain approximately $ 1,979,497 when such rights are transferred
(which gives effect to a withdrawal therefrom made by Sellers prior to the
Closing), as existing under the trust agreement therefor, which trust agreement
shall be considered an Assumed Contract assigned by the Company at the Closing.
Purchaser shall as soon as practical, but in any event within 14 days from the
date hereof, provide Sellers in writing with Purchaser's calculation, in its
reasonable determination, of the sum Sellers were entitled to withdraw from such
trust account as of the Initial Closing and, in such regard, Sellers shall
provide to Purchaser any supporting documentation required for Purchaser to make
such determination (to the extent such documentation is not contained in the
applicable Facility files). Sellers shall have the right to review such
determination and shall notify Purchaser of any objection thereto within two (2)
Business Days after the receipt thereof. Sellers and Purchaser shall negotiate
in good faith to attempt to resolve any such objection made by Sellers, provided
that, if such parties are unable to agree upon a reasonably detailed calculation
of such amount within three (3) Business Days after Sellers have advised
Purchaser of any objections, such dispute shall be resolved by the Mediator. If
Sellers do not notify Purchaser of any such objection within such two (2)
Business Day period, Sellers shall be deemed to have agreed with the
determination specified in Purchaser's written statement. If the amount
withdrawn from such before the Initial Closing was in excess of the amount so
determined to be appropriate, Sellers shall pay to Purchaser or the pertinent
Transferee the excess amount and, if the amount withdrawn was less that the
amount so determined to be appropriate, Purchaser shall pay to the Company the
additional amount it was entitle to withdraw from such account.
By its acceptance and agreement below, Guarantor hereby ratifies and
confirms its guaranty under Section 11.17 of the Agreement of all of the
obligations of Purchaser under the Agreement, and its guaranty under Section
8.18 of the RPA of all of the obligations of the Receivables Purchaser under the
RPA, including as amended, supplemented or otherwise affected hereby, and
acknowledges and agrees that its guaranty of Purchaser's obligations under the
Agreement (including Purchaser's obligations under this supplemental letter) and
its guaranty of the Receivables Purchaser's obligations under the RPA, shall
apply and remain in full force and effect in accordance with the terms of the
Agreement and the RPA and the orders of the Bankruptcy Court approving the
Agreement (including the Supplemental Agreement) and the RPA. All obligations of
Purchaser under the Agreements of Assignment and Assumption being or to be
executed and delivered by the Purchaser under the Agreement
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in connection with the Closing are guaranteed by Guarantor to the extent the
obligations of Purchaser under the Agreement are guaranteed by Guarantor.
Except as amended, supplemented and/or affected by the foregoing, each of
the Agreement and the RPA is hereby ratified, confirmed and accepted by the
Sellers, Purchaser, the Receivables Purchaser and Guarantor in all respects and
shall remain unmodified and in full force and effect.
THE NATIONAL BENEVOLENT
ASSOCIATION OF THE CHRISTIAN
CHURCH (DISCIPLES OF XXXXXX)
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXXXX X. XXXXX CHRISTIAN
HOME, an Illinois not-for-profit
corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
CALIFORNIA CHRISTIAN HOME, a
California not-for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
CYPRESS VILLAGE, INC., a Florida not-
for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
FOXWOOD SPRINGS LIVING
CENTER, a Missouri not-for-profit
corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
KANSAS CHRISTIAN HOME, INC. a
Kansas not-for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
LENOIR, INC., a Missouri not-for-
profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
OKLAHOMA CHRISTIAN HOME,
INC., an Oklahoma not-
for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
PATRIOT HEIGHTS, INC., a Texas not-
for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXXXX HOME, an Iowa not-for-profit
corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
GREATER INDIANAPOLIS
DISCIPLES HOUSING INC., an Indiana
not-for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
VILLAGE AT SKYLINE, a Colorado not-
for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
HOMES OF CYPRESS, INC., a Florida
not-for-profit corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
ACCEPTED AND AGREED TO:
FORTRESS NBA ACQUISITION, LLC
/s/ Xxxxxxx X. Xxxxxxx
By:__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: VP
FIT NBA XXXXXX XXXXX LLC
FIT NBA CALIFORNIA CHRISTIAN LLC
FIT NBA CYPRESS VILLAGE LLC
FIT NBA FOXWOOD SPRINGS LLC
FIT NBA KANSAS CHRISTIAN LLC
FIT NBA LENOIR LLC
FIT NBA OKLAHOMA CHRISTIAN LLC
FIT NBA PATRIOT HEIGHTS LP
FIT NBA XXXXXX LLC
FIT NBA XXXXX RUN LP
FIT NBA SKYLINE LLC
FIT NBA CYPRESS HOMES LLC
FIT NBA FOXWOOD SPRINGS HOMES LLC
/s/ Xxxxxxx X. Xxxxxxx
Each by:__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: VP
FIT NBAS LLC
/s/ Xxxxxxx X. Xxxxxxx
By:__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: VP
FORTRESS INVESTMENT FUND II LLC, as Guarantor
By: FORTRESS FUND XX XX LLC, its
Managing Member
By: FORTRESS INVESTMENT GROUP
LLC, its Managing Member
/s/ Xxxxxxx X. Xxxxxxx
By: _____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: VP
