Contract
This
AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Amendment”),
dated
as of February 14, 2006, is entered into by and between DIALYSIS CORPORATION
OF
AMERICA, a Florida corporation (herein, together with its successors and
assigns, the “Borrower”),
and
KEYBANK NATIONAL ASSOCIATION, a national banking association (herein, together
with its successors and assigns, the “Lender”).
PRELIMINARY
STATEMENTS:
(1) The
Borrower and the Lender entered into the Credit Agreement, dated as of
October 24, 2005 (as amended, the “Credit
Agreement”;
capitalized terms used herein and not defined herein are used herein as defined
in the Credit Agreement).
(2) The
parties
hereto desire to modify certain terms and provisions of the Credit
Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. AMENDMENT.
Section
6.3 of the Credit Agreement is hereby amended effective as of February 1,
2006,
by (1) deleting the period (“.”) from the end of clause (c) thereof and
inserting a semicolon and the word “and” (“; and”) in its place and (2)
inserting the following new clause (d) thereto:
(d) Liens
on
the assets purchased by the Borrower to and as and to the extent described
in
the Asset Purchase Agreement, dated as of February 14, 2006 (and effective
as of
February 1, 2006), by and between DCA of Kilmarnock, LLC, a Subsidiary of
the
Borrower, and DVA Healthcare Renal Care, Inc. so long as the cost or fair
market
value of such assets does not at any time exceed $250,000.
SECTION
2. REPRESENTATIONS
AND WARRANTIES. The
Borrower represents and warrants to the Lender as follows:
2.1. Authorization,
Validity and Binding Effect.
This
Amendment has been duly authorized by all necessary corporate action on the
part
of the Borrower, has been duly executed and delivered by a duly authorized
officer or officers of the Borrower, and constitutes the valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance
with
its terms.
2.2. Representations
and Warranties True and Correct.
The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the date
hereof
as though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to a specified date, in which
case such representations and warranties are hereby reaffirmed as true and
correct when made.
2.3. No
Event of Default.
After
giving effect to this Amendment, no condition or event has occurred or exists
that constitutes or that, after notice or lapse of time or both, would
constitute a Default or an Event of Default.
2.4. No
Claims.
The
Borrower is not aware of any claim or offset against, or defense or counterclaim
to, any of its obligations or liabilities under the Credit Agreement or any
other Credit Document.
SECTION
3. RATIFICATIONS.
Except
as
expressly modified and superseded by this amendment, the terms and provisions
of
the Credit Agreement are ratified and confirmed and shall continue in full
force
and effect.
SECTION
4. CONDITIONS
PRECEDENT. The
amendments set forth in Section 1 hereof shall become effective as of the
date first written above if on or before the date hereof, the following
conditions have been satisfied:
(a) this
Amendment shall have been executed by the Borrower and the Lender, and
counterparts hereof as so executed shall have been delivered to the
Lender;
(b) the
Borrower shall have caused each Guarantor to consent and agree to and
acknowledge the terms of this Amendment; and
(c) the
Borrower
shall have provided such other items and shall have satisfied such other
conditions as may be reasonably required by the Lender.
SECTION
5. MISCELLANEOUS.
5.1. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the Borrower
and the
Lender and their respective successors and assigns.
5.2. Survival
of Representations and Warranties.
All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by the Lender
or
any subsequent Loan shall affect the representations and warranties or the
right
of the Lender to rely upon them.
5.3. Reference
to Credit Agreement.
The
Credit Agreement and any and all other agreements, instruments or documentation
now or hereafter executed and delivered pursuant to the terms of the Credit
Agreement as amended hereby, are hereby amended so that any reference therein
to
the Credit Agreement shall mean a reference to the Credit Agreement as amended
hereby.
5.4. Expenses.
As
provided in the Credit Agreement, but without limiting any terms or provisions
thereof, the Borrower agrees to pay on demand all costs and expenses incurred
by
the Lender in connection with the preparation, negotiation, and execution
of
this Amendment, including without limitation the costs and fees of the Lender’s
special legal counsel, regardless of whether this Amendment becomes effective
in
accordance with the terms hereof, and all costs and expenses incurred by
the
Lender in connection with the enforcement or preservation of any rights under
the Credit Agreement, as amended hereby.
5.5. Severability.
Any
term or provision of this Amendment held by a court of competent jurisdiction
to
be invalid or unenforceable shall not impair or invalidate the remainder
of this
Amendment and the effect thereof shall be confined to the term or provision
so
held to be invalid or unenforceable.
5.6. Applicable
Law.
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of Ohio, without regard to principles of conflicts of laws.
5.7. Headings.
The
headings, captions and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
5.8. Entire
Agreement.
This
Amendment is specifically limited to the matters expressly set forth herein.
This Amendment and all other instruments, agreements and documentation executed
and delivered in connection with this Amendment embody the final, entire
agreement among the parties hereto with respect to the subject matter hereof
and
supersede any and all prior commitments, agreements, representations and
understandings, whether written or oral, relating to the matters covered
by this
Amendment, and may not be contradicted or varied by evidence of prior,
contemporaneous or subsequent oral agreements or discussions of the parties
hereto. There are no oral agreements among the parties hereto relating to
the
subject matter hereof or any other subject matter relating to the Credit
Agreement.
5.9. Waiver
of Claims.
The
Borrower, by signing below, hereby waives and releases the Lender and its
directors, officers, employees, attorneys, affiliates and subsidiaries from
any
and all claims, offsets, defenses and counterclaims of which Borrower is
aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel
with
respect thereto.
5.10. Counterparts.
This
Amendment may be executed by the parties hereto separately in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
agreement. Transmission by a party to another party (or its counsel) via
facsimile or electronic mail of a copy of this Amendment (or a signature
page of
this Amendment) shall be as fully effective as delivery by such transmitting
party to the other parties hereto of a counterpart of this Amendment that
had
been manually signed by such transmitting party.
5.11. JURY
TRIAL WAIVER.
THE
BORROWER AND THE LENDER EACH WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN
THE BORROWER AND THE LENDER, ARISING OUT OF, IN CONNECTION WITH, RELATED
TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS
AMENDMENT, THE CREDIT AGREEMENT, THE NOTE OR OTHER RELATED WRITING, INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, this Amendment has been duly executed and delivered as of
the
date first above written.
|
BORROWER:
DIALYSIS
CORPORATION OF AMERICA
By:
Name:
Xxxxxxx
X. Xxxxxxx
Title:
President
and Chief Executive Officer
|
|
|
LENDER:
KEYBANK
NATIONAL ASSOCIATION
By:
Name:
X.X.
Xxxxxx
Title:
Senior
Vice President
|
GUARANTOR
ACKNOWLEDGMENT AND AGREEMENT
Each
of
the undersigned consents and agrees to and acknowledges the terms of the
foregoing Amendment No. 2 to Credit Agreement, dated as of February ___,
2006.
Each of the undersigned specifically acknowledges the terms of and consent
to
the waivers set forth therein. Each of the undersigned further agrees that
the
obligations of each of the undersigned pursuant to the Closing Date Guaranty
executed by each of the undersigned shall remain in full force and effect
and be
unaffected hereby.
Each
of
the undersigned, by signing below, hereby waives and releases the Lender
and its
respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims
of
which any of the undersigned is aware, such waiver and release being with
full
knowledge and understanding of the circumstances and effect thereof and after
having consulted legal counsel with respect thereto.
EACH
OF
THE UNDERSIGNED WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THE
UNDERSIGNED, THE BORROWER AND/OR THE LENDER, ARISING OUT OF, IN CONNECTION
WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT, THE CREDIT AGREEMENT, THE NOTE OR OTHER RELATED
WRITING, INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN
WITNESS WHEREOF, each of the undersigned has duly executed and delivered
this
Guarantor Acknowledgement and Agreement as of the date first written
above.
DCA
Medical Services, Inc.
DCA
of
Adel, LLC
DCA
of
Xxxxxxx, LLC
DCA
of
Central Valdosta, LLC
DCA
of
Xxxxxxxxxx, LLC
DCA
of
Hawkinsville, LLC
DCA
of
So. Ga., LLC
DCA
of
Royston, LLC
DCA
of
Rockville, LLC
DCA
of
Xxxxxxx, LLC
DCA
of
Lemoyne, Inc.
DCA
of
Mechanicsburg, LLC
DCA
of
Wellsboro, Inc.
Keystone
Kidney Care, Inc.
DCA
of
Warsaw, LLC
DCA
of
Aiken, LLC
DCA
of
Aiken II, LLC
DCA
of
Xxxxxxxx, LLC
DCA
of
Edgefield, LLC
By:_______________________________________
Name: Xxxxxxx
X. Xxxxxxx
Title:
President
of each of the foregoing Guarantors
DIALYSIS
CORPORATION OF AMERICA
as
the Borrower,
and
KEYBANK
NATIONAL ASSOCIATION,
as
the Lender
_____________________
AMENDMENT
NO. 2
to
CREDIT
AGREEMENT
dated
as
of
February
14, 2006
_____________________
