AMENDMENT TO
LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made as of
December 1, 1997, by and between DIALYSIS CORPORATION OF AMERICA, a
Florida corporation (the "Borrower") having an address at 0000 Xxxx 00xx
Xxxxxx, Xxxxxxx, XX 00000 and MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY,
a Maryland banking institution (the "Bank").
RECITALS
Pursuant to a certain Loan Agreement (which Loan Agreement, as the
same has or may at any time and from time to time be amended, restated,
supplemented or otherwise modified, is herein called the "Loan Agreement")
dated November 30, 1988, between the Borrower and the Bank, the Borrower
obtained a loan (the "Loan") from the Bank in accordance with and subject
to the provisions of the Loan Agreement.
The Borrower's obligation to repay the Loan with interest is evidenced
by a Promissory Note dated November 30, 1988 in the principal amount of
$480,000.00 from the Borrower to the Bank (the "Note"). The Note has been
amended pursuant to a First Amendment to Promissory Note of even date here-
with.
The Note is secured by a Mortgage and Security Agreement from the
Borrower for the benefit of the Bank, covering certain real property as
described therein (the "Mortgage"). The Borrower's obligations under the
Note are also secured by an Assignment of Rents and Leases dated November
30, 1988 by and between the Borrower and the Bank (the "Assignment of
Rents and Leases").
The Borrower has requested the Bank to delete the call provisions of
the Loan Agreement and to make certain other accommodations and the Bank
has agreed to do so provided that, among other things, the provisions of
the Loan Agreement are amended and modified in accordance with the pro-
visions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Bank and the Borrower agree as
follows:
1. Recitals. The Bank and the Borrower acknowledge that the above
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Recitals to this Amendment are true and correct, and agree that the same
are incorporated by reference into the body of this Amendment. Unless
otherwise specifically defined herein, all terms defined by the provisions
(including, without limitation, the terms "Loan Documents", "Default",
"Event of Default", "Lease", "Loan", Tenant" and "Trust Property" shall
have the same meanings ascribed to
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such terms by the provisions of the Note, Mortgage or the Loan Agreement
(as the case may be) when used herein.
2. Amendments and Modifications to Loan Agreement.
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2.1. The Loan Agreement is hereby amended and modified by
deleting Subsection D. of Section 1 of the Loan Agreement in its entirety.
2.2. The Loan Agreement is hereby amended and modified by
modifying the language of Subsection G(8) of Section 7 to read as follows:
(8) Make loans or advances to any company, person or
other entity, except for loans or advances to subsidiaries or to
Medicore which do not cause a violation of paragraph (3) above.
2.3. The Loan Agreement is hereby amended and modified by
modifying the language of Subsection G(10) of Section 7 to read as follows:
(10) At fiscal year end permit the Borrower's ratio of
the sum of net income before taxes plus interest expense divided
by interest expense of the Borrower to be less than 2.0 to 1.0.
2.4. The Loan Agreement is hereby amended and modified by
modifying the language of Subsection G(12) of Section 7 to read as follows:
(12) Suffer or permit dissolution or liquidation either
in whole or in part of any shares of its own stock.
2.5. The Loan Agreement is hereby amended and modified by
deleting Subsection (13) of Section 7(G) and by deleting Subsection H of
Section 7 of the Loan Agreement in their entirety.
2.6. The Loan Agreement is hereby amended and modified by
deleting the notice address provided for the Borrower in Section 12 and
inserting the following in lieu thereof:
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
with copies to:
Xxxxxxxx X. Xxxxx, Esquire
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
2.7. The Loan Agreement is hereby amended and modified by
adding the following new Section 13 to the end hereof:
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"13. Leases; Alterations to Trust Property.
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13.1. Approval of Leases. Notwithstanding any-
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thing to the contrary contained in this Loan Agreement, the Mortgage and/or
the Assignment of Rents and Leases, all Leases shall be subject to the
prior written approval of the Bank which approval shall not be unreasonably
withheld. All other terms and conditions regarding the Borrower's covenants
and obligations to the Bank as to any Leases remain in full force and effect.
13.2. Alterations to Trust Property. Notwith-
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standing anything to the contrary contained in this Loan Agreement, in
Section 7.08 of the Mortgage or in any of the other Loan Documents, the
Borrower shall be permitted to make, without the Bank's prior written
approval, alterations and/or improvements to the Trust Property that are
either non-structural in nature or related to the buildout of leasehold
improvements for a Tenant under a Lease approved by the Bank. The Borrower
shall notify the Bank, in writing, of any and all such alterations upon
completion thereof."
3. Fees, Costs and Expenses. The Borrower shall pay to the Bank on
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demand all costs and expenses both now and hereafter paid or incurred with
respect to the preparation, negotiation, execution, administration and
enforcement of this Amendment and all documents related thereto, including,
without limitation, attorney's fees and expenses, recording costs, recorda-
tion and other taxes, appraisal fees, costs of record searches, title
company premiums and costs, fees and expenses for environmental audits
and survey costs.
4. Representations and Warranties. In order to induce the Bank to
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enter into this Amendment, the Borrower represents and warrants to the
Bank that as of the date hereof (i) no Default or Event of Default exists
under the provisions of the Loan Agreement, the Note and the other Loan
Documents; (ii) no event exists which, with the giving of notice or lapse
of time, or both, could or would constitute a Default or Event of Default
under the provisions of the Loan Agreement, the Note and the other Loan
Documents; (iii) all of the representations and warranties of the Borrower
in the Loan Agreement and the other Loan Documents, are true and correct
on the date hereof as if the same were made on the date hereof; (iv) all
collateral pledged as security of the Loan is free and clear of all
assignments, security interests, liens and other encumbrances of any kind
and nature whatsoever except for those granted or permitted under the
provisions of the Loan Agreement and the other Loan Documents; (v) no
material adverse change has occurred in the business, financial condition,
prospects or operations of the Borrower since the date of the financial
statements of the Borrower most recently furnished to the Bank; and (vi)
the Agreement (as amended by this Amendment) and the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally. If any of the foregoing
representations and warranties shall prove to be false, incorrect or
misleading in any material respect, the Bank may, in its absolute and
sole discretion, declare (a) that an Event of Default has occurred and
exists under the provisions of the Loan Agreement and/or (b) any of the
provisions of this Amendment to be null, void and of no force and effect.
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5. Amendment and Modification Only. This Amendment is only an
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agreement amending and modifying certain provisions of the Loan Agreement.
All of the provisions of the Loan Agreement are incorporated herein by
reference and shall remain and continue in full force and effect as
amended by this Amendment. The Borrower hereby ratifies and confirms
all of its obligations, liabilities and indebtedness under the provisions
of the Loan Agreement as amended by this Amendment. The Bank and the
Borrower agree it is their intention that nothing herein shall be construed
to extinguish, release or discharge or constitute, create or effect a
novation of, or an agreement to extinguish, any of the obligations,
indebtedness and liabilities of the Borrower under the provisions of the
Loan Agreement or under the other Loan Documents, or any assignment or
pledge to the Bank of, or any security interest or lien granted to the
Bank in or on, any collateral and security for such obligations, indebted-
ness and liabilities.
6. Applicable Law, Etc. This Amendment shall be governed by the
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laws of the State of Maryland and may be executed in any number of dupli-
cate originals or counterparts, each of such duplicate originals or
counterparts shall be deemed to be an original and all taken together
shall constitute one and the same instrument.
7. Binding Effect. This Amendment shall be binding upon and inure
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to the benefit of the Bank and the Borrower and their respective successors
and assigns.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this
Amendment under their respective seals, the day and year first written
above.
ATTEST: DIALYSIS CORPORATION OF AMERICA
/s/ Xxxxxx X. Xxxxx
----------------------------- By:--------------------------- (Seal)
Secretary Xxxxxx X. Xxxxx, Vice President/Finance
WITNESS: MERCANTILE-SAFE DEPOSIT AND TRUST
COMPANY
/s/ Xxxxxxx X. Xxxxxx
----------------------------- By:--------------------------- (Seal)
Xxxxxxx X. Xxxxxx, Vice President
