Exhibit 10.289

 

15176184

01-14-13

 

MEMORANDUM OF AGREEMENT

 

January 25, 2013

 

The PrivateBank and Trust Company, an Illinois banking corporation (the “Lender”), is the Lender under a Loan and Security Agreement dated as of September 20, 2012, as modified and amended by a Modification Agreement dated as of October 26, 2012 (as so modified and amended, the “Loan Agreement”), by and among the Borrowers named therein (the “Borrowers”), each of which is a party to this Memorandum of Agreement (this “Agreement”), and the Lender.  The Loan under the Loan Agreement (the “Loan”) is guaranteed by AdCare Health Systems, Inc., an Ohio corporation (the “Guarantor”), which is a party to this Agreement.  The Borrowers include Northridge HC&R Nursing, LLC, Woodland Hills HC Nursing, LLC, and APH&R Nursing, LLC, each a Georgia limited liability company (the “Subject Borrowers”).  Capitalized terms used and not otherwise defined in this Agreement shall have the same meanings as in the Loan Agreement.  The Borrowers, the Guarantor and the Lender hereby agree as follows:

 

1.                                      On December 28, 2012, one or more of the Subject Borrowers made a payment on the Loan to the Lender in the amount of $683,549, which was an amount agreed to by the Borrowers, the Guarantor and the Lender to obtain a release of the Subject Borrowers and their Collateral from the Loan.  In consideration of such payment, the Lender hereby releases each of the Subject Borrowers as a Borrower under the Loan Agreement, and releases the Collateral which is the property of such Subject Borrower as security for the Loan.

 

2.                                      The Borrowers, the Guarantor and the Lender acknowledge and agree that this Agreement sets forth all of the covenants, promises, agreements, conditions and understandings of the Borrowers, the Guarantor and the Lender relating to the subject matter of this Agreement, and that there are no covenants, promises, agreements, conditions or understandings, either oral or written, among the Borrowers, the Guarantor and the Lender relating to the subject matter of this Agreement other than as are herein set forth.  The Borrowers and the Guarantor also acknowledge that they are executing this Agreement without relying on any statements, representations or warranties, either oral or written, that are not expressly set forth in this Agreement.

 

3.                                      The Loan Agreement and the other Loan Documents remain in full force and effect as originally executed and delivered by the parties thereto, as modified and amended by the Modification Agreement described above, and subject to the releases contained in this Agreement, and the Loan Agreement and the other Loan Documents, as so modified and amended, are hereby confirmed and reaffirmed by the Borrowers, other than the Subject Borrowers, and the Guarantor, subject to the releases contained in this Agreement.

 

4.                                      The Borrowers, other than the Subject Borrowers, and the Guarantor hereby (i) acknowledge and agree that the Lender has not heretofore waived any Default or Event of Default under the Loan Agreement or any of the other Loan Documents, or any rights or

 











 

remedies under the Loan Agreement or any of the other Loan Documents; and (ii) acknowledge and agree that they do not have any defense, setoff or counterclaim to the payment or performance of any of their obligations under, or to the enforcement by the Lender of, the Loan Agreement or any of the other Loan Documents, as modified and amended by the said Modification Agreement, including, without limitation, any defense, setoff or counterclaim based on the covenant of good faith and fair dealing.

 

5.                                      This Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors, assigns and legal representatives.  In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.  This Agreement may be amended, changed, modified or altered only by a written instrument executed the party sought to be bound by such amendment, change, modification or alteration.

 

6.                                      The Borrowers, the Guarantor and the Lender, and their respective legal counsel, have participated in the drafting of this Agreement, and accordingly the general rule of construction to the effect that any ambiguities in a contract are to be resolved against the party drafting the contract shall not be employed in the construction and interpretation of this Agreement.

 

7.                                      This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same document.  Receipt of an executed signature page to this Agreement by facsimile or other electronic transmission shall constitute effective delivery thereof.

 

8.                                      This Agreement is prepared and entered into with the intention that the law of the State of Illinois shall govern its construction and enforcement.

 

[SIGNATURE PAGE(S) AND EXHIBIT(S),

IF ANY, FOLLOW THIS PAGE]

 

2











 

	
 
    	
ADK   THOMASVILLE OPERATOR, LLC
    
	
 
    	
ADK   LUMBER CITY OPERATOR, LLC
    
	
 
    	
ADK   JEFFERSONVILLE OPERATOR, LLC
    
	
 
    	
ADK   LAGRANGE OPERATOR, LLC
    
	
 
    	
ADK   POWDER SPRINGS OPERATOR, LLC
    
	
 
    	
ADK   OCEANSIDE OPERATOR, LLC
    
	
 
    	
ADK   THUNDERBOLT OPERATOR, LLC
    
	
 
    	
ADK   SAVANNAH BEACH OPERATOR, LLC
    
	
 
    	
ATTALLA   NURSING ADK, LLC
    
	
 
    	
MOUNTAIN   TRACE NURSING ADK, LLC
    
	
 
    	
MT.   KENN NURSING, LLC
    
	
 
    	
ERIN   NURSING, LLC
    
	
 
    	
CP   NURSING, LLC
    
	
 
    	
BENTON   NURSING, LLC
    
	
 
    	
VALLEY   RIVER NURSING, LLC
    
	
 
    	
PARK   HERITAGE NURSING, LLC
    
	
 
    	
HOMESTEAD   NURSING, LLC
    
	
 
    	
WOODLAND   MANOR NURSING, LLC
    
	
 
    	
MOUNTAIN   VIEW NURSING, LLC
    
	
 
    	
NORTHRIDGE   HC&R NURSING, LLC
    
	
 
    	
LITTLE   ROCK HC&R NURSING, LLC
    
	
 
    	
WOODLAND   HILLS HC NURSING, LLC
    
	
 
    	
APH&R   NURSING, LLC
    
	
 
    	
GLENVUE   H&R NURSING, LLC
    
	
 
    	
COOSA   NURSING ADK, LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
/s/   Boyd P. Gentry
    
	
 
    	
 
    	
Boyd   P. Gentry, Manager of Each Borrower
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ADCARE   HEALTH SYSTEMS, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
/s/   Boyd P. Gentry
    
	
 
    	
 
    	
Boyd P. Gentry, Chief Executive Officer
    


 

- AdCare Portfolio Operator Loan Memorandum of Agreement -

- Signature Page 1 -

 











 

	
 
    	
THE   PRIVATEBANK AND TRUST COMPANY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
/s/   Amy K. Hallberg
    
	
 
    	
 
    	
Amy K. Hallberg, Managing Director
    


 

- AdCare Portfolio Operator Loan Memorandum of Agreement -

- Signature Page 2 -