This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment"), dated as
of July 27, 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. AMENDMENTS.
1.1. Indebtedness Covenant. Section 6.2 of the Credit Agreement is
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hereby amended by (1) deleting the period (".") from the end of clause (g)
thereof and inserting a semicolon and the word "and" ("; and") in its place
and (2) inserting the following new clause (h) thereto:
(h) Indebtedness incurred to finance insurance premiums in the
ordinary course of business.
1.2. Lien Covenant. Section 6.3 of the Credit Agreement is hereby
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amended by (1) deleting the period (".") from the end of clause (d) thereof
and inserting a semicolon and the word "and" ("; and") in its place and (2)
inserting the following new clause (e) thereto:
(e) Liens securing Indebtedness incurred to finance insurance
premiums permitted under clause (h) of Section 6.2, provided that
such Liens shall be permitted only with respect to unearned premiums
which may become payable under the relevant insurance policies and
return premium endorsement payments which reduce the unearned
premiums under such insurance policies.
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
/s/ Xxxxxxx X. Xxxxxxx
By:----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
LENDER:
KEYBANK NATIONAL ASSOCIATION
/s/ X.X. Xxxxxx
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. 3 to Credit Agreement, dated as of July
27, 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
/s/ Xxxxxxx X. Xxxxxxx
By:----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President of each of the
foregoing Guarantors
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DIALYSIS CORPORATION OF AMERICA
as the Borrower,
and
KEYBANK NATIONAL ASSOCIATION,
as the Lender
_____________________
AMENDMENT NO. 3
to
CREDIT AGREEMENT
dated as of
July 27, 2006
_____________________
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