JOINDER AGREEMENT, THIRD AMENDMENT and SUPPLEMENT TO CREDIT AGREEMENT
Exhibit 10.41
JOINDER AGREEMENT, THIRD AMENDMENT
and
SUPPLEMENT TO CREDIT AGREEMENT
THIS JOINDER AGREEMENT, THIRD AMENDMENT AND SUPPLEMENT TO CREDIT AGREEMENT (this “Agreement”) dated June 2, 2011, is made by and among ADK GEORGIA, LLC, a Georgia limited liability company (“ADK Georgia”), ADK POWDER SPRINGS OPERATOR, LLC, a Georgia limited liability company (“Powder Springs”), ADK LUMBER CITY OPERATOR, LLC, a Georgia limited liability company (“Lumber City”), ADK JEFFERSONVILLE OPERATOR, LLC, a Georgia limited liability company (“Jeffersonville”), ADK LAGRANGE OPERATOR, LLC, a Georgia limited liability company (“LaGrange”), ADK THOMASVILLE OPERATOR, LLC, a Georgia limited liability company (“Thomasville”), ADK OCEANSIDE OPERATOR, LLC, a Georgia limited liability company (“Oceanside”), ADK SAVANNAH BEACH OPERATOR, LLC, a Georgia limited liability company (“Savannah”), ADK THUNDERBOLT OPERATOR, LLC, a Georgia limited liability company (“Thunderbolt”), ATTALLA NURSING ADK, LLC, a Georgia limited liability company (“Attalla ADK”), MOUNTAIN TRACE NURSING ADK, LLC, an Ohio limited liability company (“Mountain Trace”; ADK Georgia, Powder Springs, Lumber City, Jeffersonville, LaGrange, Thomasville, Oceanside, Savannah, Thunderbolt, Attalla ADK and Mountain Trace are hereinafter referred to collectively as “Existing Borrowers” and each individually an “Existing Borrower”), MT. XXXX NURSING, LLC, a Georgia limited liability company (“Mt. Xxxx”), XXXX NURSING, LLC, a Georgia limited liability company (“Xxxx”), ADCARE OPERATIONS, LLC, a Georgia limited liability company (“Operations”; Mt. Xxxx, Xxxx and Operations are hereinafter referred to collectively as “New Borrowers” and each individually a “New Borrower”; New Borrowers and Existing Borrowers are hereinafter referred to collectively as “Borrowers” and each individually as a “Borrower”), and GEMINO HEALTHCARE FINANCE, LLC, a Delaware limited liability company (“Lender”). Each capitalized term used herein, unless otherwise defined herein, shall have the meaning ascribed to such term in that certain Credit Agreement dated October 29, 2010 (as at any time amended, restated, supplemented or otherwise modified, the “Credit Agreement”), among Existing Borrowers and Lender. Capitalized terms used herein, unless otherwise defined herein, shall have the meanings ascribed to them in the Credit Agreement. The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. All references to any Person shall mean and include the successors and permitted assigns of such Person. All references to any of the Loan Documents shall include any and all amendments or modifications thereto and any and all restatements, extensions or renewals thereof. Wherever the phrase “including” shall appear in this Agreement, such word shall be understood to mean “including, without limitation.”
Borrowers have requested that Lender join New Borrowers to the Credit Agreement and extend credit to New Borrowers as Borrowers under the Credit Agreement. New Borrowers are executing this Agreement to become parties to the Credit Agreement in order to induce Lender to continue to extend credit under the Credit Agreement and as consideration for the Revolving Loans previously made.
An Event of Default under the Credit Agreement has occurred, and Borrowers have requested a waiver of such Event of Default.
Accordingly, and for Ten Dollars ($10.00) in hand paid and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties hereto, Lender and Borrowers agree as follows:
1. Joinder of New Borrowers. In accordance with the Credit Agreement, each New Borrower by its signature below becomes a Borrower under the Credit Agreement with the same force
and effect as if originally named therein as a Borrower, and each New Borrower hereby agrees to all the terms and provisions of the Credit Agreement applicable to it as a Borrower thereunder. Each reference to a “Borrower” in the Credit Agreement shall be deemed to include New Borrowers. The Credit Agreement is hereby incorporated herein by reference.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended as follows:
(a) By deleting the first sentence of Section 2.01(b) of the Credit Agreement and by substituting in lieu thereof the following:
(b) On June 2, 2011, Borrowers shall execute and deliver a promissory note to Lender in the principal amount of Seven Million Five Hundred Thousand Dollars ($7,500,000) (as may be amended, modified or replaced from time to time, the “Revolving Note”).
(b) By deleting Section 6.06(b) of the Credit Agreement and by substituting in lieu thereof the following:
(b) Maximum Loan Turn Days. Borrowers shall maintain at all times a Maximum Loan Turn Days, measured quarterly at the end of the fiscal quarter ending December 31, 2010 and each fiscal quarter thereafter, of not greater than 40 days.
(c) By deleting Section 8.01(w) of the Credit Agreement and by substituting in lieu thereof the following:
(w) CHOW. The CHOW with respect to (i) each Healthcare Facility of ADK Georgia, Powder Springs, Lumber City, Jeffersonville, LaGrange and Thomasville shall not have been unconditionally and in writing approved by each of the appropriate Governmental Authorities, intermediaries or other designated agents with respect to each such Borrower and each such Healthcare Facility on or before February 28, 2011, (ii) each Healthcare Facility of Attalla Nursing ADK, LLC, ADK Oceanside Operator, LLC, ADK Savannah Beach Operator, LLC, and ADK Thunderbolt Operator, LLC shall not have been unconditionally and in writing approved by each of the appropriate Governmental Authorities, intermediaries or other designated agents with respect to each such Borrower and each such Healthcare Facility on or before April 30, 2011, or (iii) each Healthcare Facility of Mountain Trace Nursing ADK, LLC, Mt. Xxxx Nursing, LLC, and Xxxx Nursing, LLC shall not have been unconditionally and in writing approved by each of the appropriate Governmental Authorities, intermediaries or other designated agents with respect to each such Borrower and each such Healthcare Facility on or before September 30, 2011; or
(d) By deleting clauses (l) and (m) of the definition of “Eligible Accounts” set forth in Annex 1 to the Credit Agreement and by substituting in lieu thereof the following:
(l) which has a Billing Date that is both on or after September 1, 2010 and on or after the date on which the applicable Borrower acquired the Healthcare Facility with respect to which such Account arose;
(m) to the extent such Account is Medicaid Pending, it is not outstanding more than thirty (30) days past the date the corresponding services and/or goods were provided; and
(n) which complies with such other criteria and requirements as may be specified from time to time by Lender in its reasonable discretion.
(e) By deleting the definitions of “Collateral Assignment of Transition Services Agreement”, “EBITDA”, “Transferor” and “Transition Services Agreement” set forth in Annex 1 to the Credit Agreement and by substituting in lieu thereof the following:
“Collateral Assignment of Transition Services Agreement” means, collectively, (i) the Collateral Assignment of Operations Transfer Agreement of even date herewith among ADK Georgia and Lender, and the written acknowledgment thereof by Transferor, (ii) the Collateral Assignment of Transfer Agreements dated February 25, 2011, among ADK Georgia, Attalla Nursing ADK, LLC, Mountain Trace Nursing ADK, LLC, ADK and Lender, and the written acknowledgment thereof by Transferor, and (iii) the Collateral Assignment of Transfer Agreements dated June 2, 2011, among Mt. Xxxx Nursing, LLC, Xxxx Nursing, LLC, and Lender, and the written acknowledgment thereof by Transferor.
“EBITDA” means the sum of net income plus interest expense, plus taxes, plus depreciation and amortization, plus/minus any non-cash derivative losses/gains on or after April 1, 2011, plus non-cash stock based compensation expense on or after April 1, 2011, plus/minus any non-cash gains/losses with respect to acquisitions (net of acquisition costs) on or after April 1, 2011.
“Transferor” means, as applicable, any or all of Attalla Health Care, Inc., Five Star Quality Care-GA, LLC, Mountain Trace Enterprise LLC, Triad Health Management of Georgia, LLC, Triad Health Management of Georgia III, LLC, Triad at Jeffersonville I, LLC, Triad at LaGrange I, LLC, Triad at Lumber City I, LLC, Triad at Parkview, LLC, Triad at Powder Springs I, LLC, Triad at Xxxx, LLC, and Triad at Thomasville I, LLC.
“Transition Services Agreement” means, as applicable, any or all of (i) the Operations Transfer Agreement entered into as of July 31, 2010, among ADK Georgia, Triad Health Management of Georgia, LLC, Triad at Jeffersonville I, LLC, Triad at LaGrange I, LLC, Triad at Lumber City I, LLC, Triad at Powder Springs I, LLC, and Triad at Thomasville I, LLC, (ii) the Operations Transfer Agreement dated as of October 1, 2010, between Attalla Health Care, Inc., and Attalla Nursing ADK, LLC; (iii) the Operations Transfer Agreement dated as of July 31, 2010, among ADK Georgia, Triad Health Management of Georgia, LLC, Triad Health Management of Georgia III, LLC, and Triad at Xxxx, LLC; (iv) the Operations Transfer Agreement dated as of October 27, 2010, between Mountain Trace Enterprise LLC, and Mountain Trace Nursing ADK, LLC; (v) the Operations Transfer Agreement dated as of May 1, 2011, between Five Star Quality Care-GA, LLC, and Mt. Xxxx Nursing, LLC; and (vi) the Operations Transfer Agreement dated as of May 1, 2011, between Five Star Quality Care-GA, LLC and Xxxx Nursing, LLC.
(f) By adding the following definition of “Medicaid Pending” to Annex 1 of the Credit Agreement in appropriate alphabetical order:
“Medicaid Pending” means an amount that will be billed to Medicaid for services rendered to patients that are expected to qualify for such state Medicaid program, but which patients are at the time in question in the process of completing the necessary paperwork and have not yet been officially accepted by such state as eligible Medicaid patients.
3. Limited Waiver of Default. An Event of Default has occurred and currently exists under the Credit Agreement as a result of Borrower’s breach of Section 8.01(w) of the Credit Agreement (the “Designated Default”). The Designated Default exists because the CHOW with respect to the Healthcare Facility of Mountain Trace was not approved in accordance with Section 8.01(w) of the Credit Agreement on or before April 30, 2011. Borrowers represent and warrant that the Designated Default is the only Unmatured Event of Default or Event of Default that exists under the Credit Agreement and the other Loan Documents as of the date hereof. Subject to the satisfaction of the conditions precedent set forth in Section 7 hereof, Lender hereby waives the Designated Default in existence on the date hereof. In no event shall such waiver be deemed to constitute a waiver of (a) any Unmatured Event of Default or Event of Default other than the Designated Default in existence on the date of this Agreement or (b) Borrowers’ obligation to comply with all of the terms and conditions of the Credit Agreement and the other Loan Documents from and after the date hereof. Notwithstanding any prior, temporary mutual disregard of the terms of any contracts between the parties, Borrowers hereby agree that they shall be required strictly to comply with all of the terms of the Loan Documents on and after the date hereof.
4. Acknowledgments of New Borrowers. New Borrowers acknowledge that they have requested Lender to extend financial accommodations to Borrowers on a combined basis in accordance with the provisions of the Credit Agreement, as hereby amended. In accordance with the terms of Article 10 of the Credit Agreement, each New Borrower acknowledges and agrees that it shall be jointly and severally liable for any and all Revolving Loans and other Obligations heretofore or hereafter made by Lender to any Borrower and for all interest, fees and other charges payable in connection therewith. Each New Borrower hereby appoints and designates ADK Georgia as, and ADK Georgia shall continue to act under the Credit Agreement as, the Borrower Representative of each New Borrower and each other Borrower for all purposes, including requesting borrowings and receiving accounts statements and other notices and communications to Borrowers (or any of them) from Lender. Each Loan made by Lender under the Credit Agreement or any of the other Loan Documents shall be disbursed in accordance with the Credit Agreement.
5. Security Interest. To secure the prompt payment and performance to Lender of all of the Obligations, each New Borrower hereby grants to Lender a continuing security interest in and Lien upon all of such New Borrower’s assets, including all of the following Property and interests in Property of such Borrower, whether now owned or existing or hereafter created, acquired or arising and wheresoever located:
(a) all Accounts; (b) all Payment Intangibles; (c) all Instruments, Chattel Paper (including Electronic Chattel Paper), Documents, Letter-of-Credit Rights, Supporting Obligations and Commercial Tort Claims set forth on Schedule 5.23 to the Credit Agreement, in each case to the extent arising out of, relating to or given in exchange for or settlement of or to evidence the obligation to pay any Account or Payment Intangible; (d) all General Intangibles (including contract rights and trademarks, copyrights, patents and other intellectual property) that arise out of or relate to any Account or Payment Intangible or from which any Account or Payment Intangible arises; (e) all remedies, guarantees and collateral evidencing, securing or otherwise relating to or associated with any Account or Payment Intangible, including all rights of enforcement and collection; (f) all Commercial Lockboxes, Governmental Lockboxes, Collection Accounts and other Deposit Accounts into which Collections or other proceeds of Collateral or Advances are deposited, and all checks or Instruments from time to time representing or evidencing the same; (g) all cash, currency and other monies at any time in the possession or under the control of Lender or a bailee of Lender; (h) all books and records evidencing or relating to or associated with any of the foregoing; (i) all information and data compiled or derived with respect to any of the foregoing (other than any such information and data subject to legal
restrictions of patient confidentiality); and (j) all Collections, Accessions, receipts and Proceeds derived from any of the foregoing.
6. Representations and Warranties. Mt. Xxxx and Xxxx each represents and warrants to Lender that such New Borrower is a wholly owned Subsidiary of Operations. Operations represents and warrants to Lender that such New Borrower is a wholly owned Subsidiary of ADK. Each New Borrower represents and warrants to Lender that such New Borrower is engaged in the same business as the other Borrowers (or, in the case of Operations, solely as a holding company for the equity interests of Mt. Xxxx, Xxxx and CP Nursing, LLC, a Georgia limited liability company) as part of a joint and common enterprise; that this Agreement has been duly authorized, executed and delivered by such New Borrower and constitutes a legal, valid and binding obligation of such New Borrower, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity); and that the Schedules attached hereto contain true, accurate and complete information with respect to New Borrowers and the matters covered therein and such Schedules shall be deemed to supplement and be a part of the Schedules to the Credit Agreement. In addition, each New Borrower represents and warrants to Lender that no Event of Default or Unmatured Event of Default exists on the date hereof other than the Designated Default; that the execution, delivery and performance of this Agreement have been duly authorized by all requisite company action on the part of Borrowers and this Agreement has been duly executed and delivered by Borrowers; and that all of the representations and warranties made by Borrowers in the Credit Agreement are true and correct on and as of the date hereof.
7. Conditions Precedent. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions precedent, in form and substance satisfactory to Lender, unless satisfaction thereof is specifically waived in writing by Lender:
(a) No Event of Default or Unmatured Event of Default shall exist other than the Designated Default;
(b) Lender shall have received from Borrowers a duly executed counterpart of this Agreement;
(c) Lender shall have received from Borrowers a duly executed Second Amended and Restated Revolving Note in the amount of $7,500,000;
(d) Lender shall have received, reviewed and found acceptable in all respects all organizational documents for New Borrowers, including certified resolutions, a copy of the Articles of Organization for each New Borrower certified by such New Borrower’s state of formation, a copy of each New Borrower’s Operating Agreement, a good standing certificate of each New Borrower certified by such New Borrower’s state of formation, and a good standing certificate of each New Borrower certified by each other state in which such New Borrower is qualified to transact business;
(e) Lender shall have received from each New Borrower authorization to file UCC-1 financing statements and any other appropriate documentation to perfect or continue the perfection of Lender’s liens with respect to the assets of such New Borrower and Lender shall have received confirmation from each appropriate jurisdiction that such financing statements have been filed in the appropriate records;
(f) Lender shall have completed its due diligence to ensure that Lender’s security interests and liens are or will be first priority liens on the assets of each New Borrower and that there are no other liens on such assets other than those that are acceptable to Lender in its sole discretion, and in connection therewith shall have obtained such intercreditor and subordination agreements as may be deemed necessary by Lender, in form and substance satisfactory to Lender;
(g) Lender shall have received from New Borrowers evidence of New Borrowers’ liability, property and casualty insurance coverage and insurance binders and lender’s loss payable endorsements with respect thereto naming Lender as certificate holder, lender’s loss payee and additional insured, as applicable;
(h) Lender shall have received from New Borrowers such other documents, instruments and agreements (including, without limitation, Depository Agreements in respect of the Government Lockbox) as Lender may require in its sole discretion in form and substance satisfactory to Lender;
(i) New Borrowers shall have delivered to Lender such financial, business and other information with respect to New Borrowers as Lender may have requested;
(j) There shall not have occurred any material adverse change in the operations or financial condition of Borrowers;
(k) Lender shall have received an opinion letter from Borrowers’ legal counsel with respect to such matters as Lender may request;
(l) Each New Borrower shall have signed and delivered to Lender notices, in the form of Exhibit 4.02(d) to the Credit Agreement, directing the Obligors to make payment to the Government Lockbox; and
(m) Lender shall have completed its due diligence with respect to New Borrowers and the Properties of New Borrowers, the results of which shall be satisfactory to Lender.
8. Ratification and Reaffirmation. Each Borrower hereby ratifies and reaffirms the Obligations, each of the Loan Documents and all of such Borrower’s covenants, duties, indebtedness and liabilities under the Loan Documents.
9 Additional Covenants. To induce Lender to enter into this Agreement, Borrowers covenant and agree that, within thirty (30) days after the later of (i) the date that the Centers for Medicare & Medicaid Services has made the electronic funds transfers (“EFTs”) available to a Borrower in connection with the CHOW process, or (ii) the date of this Agreement, Borrowers shall deliver to the Centers for Medicare & Medicaid Services (and provide evidence to Lender of the delivery thereof) a completed copy of Form CMS-588, together with all other documentation necessary to cause the Centers for Medicare & Medicaid Services to direct EFTs to the Government Lockbox.
10. Acknowledgments of All Borrowers. Each Borrower acknowledges and stipulates that the Credit Agreement and the other Loan Documents executed by Borrowers are legal, valid and binding obligations of Borrowers that are enforceable against Borrowers in accordance with the terms thereof; all of the Obligations are owing and payable without defense, offset or counterclaim (and to the extent there exists any such defense, offset or counterclaim on the date hereof, the same is hereby waived by Borrowers); and the security interests and liens granted by Borrowers in favor of Lender are duly perfected, first priority security interests and liens.
11. No Novation, etc. Except as otherwise expressly provided in this Agreement, nothing herein shall be deemed to amend or modify any provision of the Credit Agreement or any of the other Loan Documents, each of which shall remain in full force and effect. This Agreement is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Credit Agreement as herein modified shall continue in full force and effect.
12. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
13. Expenses of Lender. In consideration of Lender’s willingness to enter into this Agreement, Borrowers agree to reimburse Lender for Lender’s reasonable out-of-pocket expenses in connection with this Agreement, including, without limitation, the fees, disbursements and other charges of counsel for Lender.
14. Entire Agreement. This Agreement and the other Loan Documents, together with all other instruments, agreements and certificates executed by the parties in connection therewith or with reference thereto, embody the entire understanding and agreement between the parties hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and inducements, whether express or implied, oral or written. Each of the Schedules attached hereto is incorporated into this Agreement and by this reference made a part hereof.
15. Counterparts; Electronic Signatures. This Agreement and any amendments, waivers, consents or supplements may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. Any manually-executed signature page hereto delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto.
16. Effectiveness; Governing Law. This Agreement shall be effective when accepted by Lender (New Borrowers hereby waiving notice of such acceptance) and thereupon shall be deemed a contract made in Pennsylvania, and shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws principles thereof.
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, executors, successors and assigns.
18. Section Titles. Section titles and references used in this Agreement shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties hereto.
19. Manager Certification of Existing Borrowers. By their execution and delivery of this Agreement, Xxxx X. Xxxxxx and Xxxxxxxxxxx X. Xxxxxxx each hereby certifies that: (a) in his capacity as the Chief Executive Officer of ADK, Xxxx X. Xxxxxx is an authorized designee of each Existing Borrower, (b) the following Unanimous Consents in Lieu of a Special Meeting (collectively, the “Consents”) each remain in full force and effect: (i) Unanimous Consents of the Sole Member and the Managers of each ADK Georgia, Powder Springs, Lumber City, Jeffersonville, LaGrange, and Thomasville dated as of October 29, 2010; and (ii) Unanimous Consents of the Sole Member and the Managers of each Oceanside, Savannah, Thunderbolt, Attalla ADK and Mountain Trace dated as of February 21, 2011; (c) pursuant to the Consents, the Managers or designees of each Existing Borrower are
authorized and empowered (either alone or in conjunction with any one or more of the other Managers of such Existing Borrower) to take, from time to time, all or any part of the following actions on or in behalf of such Existing Borrower: (i) to make, execute and deliver to Lender this Agreement and all other agreements, documents and instruments contemplated by or referred to herein or executed by such Existing Borrower in connection herewith; and (ii) to carry out, modify, amend or terminate any arrangements or agreements at any time existing between such Existing Borrower and Lender; (d) any arrangements, agreements, security agreements, or other instruments or documents referred to or executed pursuant to this Agreement by Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxx, Xxxxxxxxxxx X. Xxxxxxx or any other Manager of such Existing Borrower, or by the Chief Executive Officer of ADK (currently, Xxxx X. Xxxxxx) or an employee of such Existing Borrower acting pursuant to delegation of authority, may be attested by such person and may contain such terms and provisions as such person shall, in his or her sole discretion, determine; (e) the Chief Executive Officer of ADK is a designee of such Existing Borrower who is authorized and empowered (either alone or in conjunction with any one or more of the Managers of such Existing Borrower) to take any action on behalf of such Existing Borrower in conjunction with the Credit Agreement and this Agreement; (f) the Chief Financial Officer of ADK (currently, J. Xxxxx Xxxxxxxxxx) and the Controller of ADK (currently, Xxxxx Xxxxxxxx) each are designees of such Existing Borrower who are authorized and empowered to borrow money from time to time under the revolving line of credit per the terms of the Credit Agreement and this Agreement, to endorse the name of any Borrower to any checks, drafts and other instruments or orders for the payment of money, payable to such Borrower or its order for the purpose of depositing the same in any account or accounts of Lender with any bank, banker, or trust company or any of the branches of any said bank, and to deal with any and all checks, drafts, and other instruments or orders (including but not limited to preparation of Borrowing Base Certificate documentation) for the payment of money and the proceeds thereof as the property of Lender; and (f) set forth below is the name and signature of the current Chief Executive Officer of ADK, Xxxx X. Xxxxxx, one designated representative and Manager of each Existing Borrower, who is authorized to sign all Credit Agreements, security agreements, instruments, assignments, pledges, mortgages, security deeds, trust deeds and other documents among Borrower and Lender:
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Xxxx X. Xxxxxx |
Chief Executive |
/s/ Xxxx X. Xxxxxx |
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Officer of ADK and | |
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Manager of each Existing Borrower | |
20. Release of Claims. To induce Lender to enter into this Agreement, each Borrower hereby releases, acquits and forever discharges Lender, and all officers, directors, agents, employees, successors and assigns of Lender, from any and all liabilities, claims, demands, actions or causes of action of any kind or nature (if there be any), whether absolute or contingent, disputed or undisputed, at law or in equity, or known or unknown, that Borrowers now have or ever had against Lender arising under or in connection with any of the Loan Documents or otherwise. Each Borrower represents and warrants to Lender that none of them have transferred or assigned to any Person any claim that any of them has ever had or claimed to have against Lender.
21. Waiver of Jury Trial. The parties hereto each hereby waives the right to trial by jury in any action, suit, counterclaim or proceeding arising out of or related to this Agreement.
[Signatures commence on following page.]
IN WITNESS WHEREOF, Borrowers and Lender have duly executed this Agreement under seal as of the date and year first above written.
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NEW BORROWERS: |
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Address for notices to New Borrowers: |
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MT. XXXX NURSING, LLC | ||
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0000 Xxxx Xxxx |
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Xxxxxxxxxxx, Xxxx 00000 |
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Attn: |
Mr. Xxxxx Xxxxxxxxxx |
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By: |
/s/ Xxxx X. Xxxxxx |
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Fax: |
(000) 000-0000 |
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Xxxx X. Xxxxxx, Manager |
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Address for notices to New Borrowers: |
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XXXX NURSING, LLC | ||
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0000 Xxxx Xxxx |
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Xxxxxxxxxxx, Xxxx 00000 |
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Attn: |
Mr. Xxxxx Xxxxxxxxxx |
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Fax: |
(000) 000-0000 |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager | |
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Address for notices to New Borrowers: |
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ADCARE OPERATIONS, LLC | ||
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0000 Xxxx Xxxx |
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Xxxxxxxxxxx, Xxxx 00000 |
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Attn: |
Mr. Xxxxx Xxxxxxxxxx |
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By: |
/s/ Xxxx X. Xxxxxx |
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Fax: |
(000) 000-0000 |
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Xxxx X. Xxxxxx, Manager |
[Signatures continued on following page.]
Joinder Agreement, Third Amendment and Supplement to Credit Agreement (AdCare)
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For purposes of the Manager Certification of Existing Borrowers in Section 19 above: |
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/s/ Xxxx X. Xxxxxx |
(SEAL) |
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Xxxx X. Xxxxxx |
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/s/ Xxxxxxxxxxx X. Xxxxxxx |
(SEAL) |
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Xxxxxxxxxxx X. Xxxxxxx |
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EXISTING BORROWERS: | ||
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ADK GEORGIA, LLC | ||
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By: |
/s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, Manager | |
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ADK POWDER SPRINGS OPERATOR, LLC | ||
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By: |
/s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, Manager | |
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ADK LUMBER CITY OPERATOR, LLC | ||
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By: |
/s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, Manager | |
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ADK JEFFERSONVILLE OPERATOR, LLC | ||
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/s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, Manager | |
[Signatures continued on following page.]
Joinder Agreement, Third Amendment and Supplement to Credit Agreement (AdCare)
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ADK LAGRANGE OPERATOR, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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ADK THOMASVILLE OPERATOR, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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ADK OCEANSIDE OPERATOR, LLC | |
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/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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ADK SAVANNAH BEACH OPERATOR, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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ADK THUNDERBOLT OPERATOR, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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ATTALLA NURSING ADK, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
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MOUNTAIN TRACE NURSING ADK, LLC | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Manager |
[Signatures continued on following page.]
Joinder Agreement, Third Amendment and Supplement to Credit Agreement (AdCare)
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LENDER: |
GEMINO HEALTHCARE FINANCE, LLC | |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Xxxxxxx X. Xxxxxx, Senior Portfolio |
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Manager |
[Consent and Reaffirmation of Guarantor appears on next page]
Joinder Agreement, Third Amendment and Supplement to Credit Agreement (AdCare)
CONSENT AND REAFFIRMATION
The undersigned guarantor of the Obligations of Borrowers at any time owing to Lender hereby (i) acknowledges receipt of a copy of the foregoing Joinder Agreement, Third Amendment and Supplement to Credit Agreement; (ii) consents to Borrowers’ execution and delivery thereof and of the other documents, instruments or agreements Borrowers agree to execute and deliver pursuant thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing contained therein shall modify in any respect whatsoever its guaranty of the Obligations and reaffirms that such guaranty is and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has caused its duly authorized officers to execute this Consent and Reaffirmation on and as of the date of such Joinder Agreement, Third Amendment and Supplement to Credit Agreement.
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ADCARE HEALTH SYSTEMS, INC. | |
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By: |
/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Chief Executive Officer |
Joinder Agreement, Third Amendment and Supplement to Credit Agreement (AdCare)
List of Attached Schedules
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Schedule 5.01 |
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Borrowers’ States of Qualifications |
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Schedule 5.02 |
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Jurisdictions of Organization/Chief Executive Office/Other Locations of Collateral |
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Schedule 5.03 |
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Provider Identification Numbers |
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Schedule 5.04 |
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Pending Litigation |
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Schedule 5.06 |
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Permitted Liens |
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Schedule 5.09 |
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Fiscal Year End/Tax Identification Number/Organization Number |
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Schedule 5.11 |
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Guaranties, Investments and Borrowings |
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Schedule 5.13 |
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Other Associations |
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Schedule 5.14 |
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Environmental Matters |
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Schedule 5.15 |
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Capital Stock |
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Schedule 5.23 |
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Commercial Tort Claims |
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Schedule 5.24 |
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Letter-of-Credit Rights |
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Schedule 5.25 |
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Intellectual Property |
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Schedule 7.06 |
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Investments |
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Schedule 7.12 |
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Indebtedness |
