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 $600,000.00 from the Borrower to the Bank (the "Note"). The
Note has been amended pursuant to a First Amendment to Promissory Note of
even date herewith.
The Note is secured by a Deed of Trust and Security Agreement from
the Borrower to Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, Xx., trustees,
for the benefit of the Bank, covering certain real property as described
therein (the "Deed of Trust"). 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, Deed of Trust or the Loan Agree-
ment (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 Deed of Trust
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 unrea-
sonably 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 Deed of Trust 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 agree-
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ment 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 obliga-
tions, 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 liabili-
ties 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, indebtedness 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
