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DIALYSIS CORPORATION OF AMERICA
as the Borrower,
and
KEYBANK NATIONAL ASSOCIATION,
as the Lender
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AMENDMENT NO. 6
to
CREDIT AGREEMENT
dated as of
February 27, 2009
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This AMENDMENT NO. 6 TO CREDIT AGREEMENT (this "Amendment"), dated as of
February 27, 2009, 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. New Definition. Section 1.1 of the Credit Agreement is hereby
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amended by inserting the following definition in the appropriate alphabetical
order:
"Share Repurchase" means the repurchase or redemption or retirement
of any capital stock or other equity interest of a Company by such
Company.
1.2. Consolidated Net Worth. Clause (ii)(B) of Section 6.1(d) of the
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Credit Agreement is hereby amended and restated in its entirety to read:
(B) 100% of the proceeds from any equity offering by any Company or
any debt offering of any Company to the extent actually converted into
equity, and to the extent such proceeds do not result from the
reissuance of equity interests that were previously repurchased,
redeemed or retired pursuant to a Share Repurchase expressly permitted
under Section 6.5(d) or otherwise consented to in writing by the Lender.
1.3. Restricted Payments. Section 6.5 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (b) thereof, (ii)
replacing the period at the end of clause (c) thereof with "; and" and
inserting the following clause (d) after clause (c) thereof:
(d) Borrower may make Share Repurchases, provided that (i) no
Default or Event of Default shall have occurred and be continuing or
would result therefrom, (ii) Borrower will be in compliance with the
financial covenants set forth in Section 6.1 after giving pro forma
effect to each such Share Repurchase and (iii) the aggregate amount of
all Share Repurchases made by Borrower shall not exceed $3,000,000.
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
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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 by executing a Guarantor
Acknowledgment and Agreement substantially similar to the form attached
hereto as Exhibit A;
(c) the Borrower shall have paid to the Lender an amendment fee in the
amount set forth in a separate fee letter provided to the Borrower on or
about the date hereof;
(d) the Borrower shall have paid all legal fees and expenses of counsel
to the Lender to the extent invoiced on or prior to the date hereof; and
(e) 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
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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 construed
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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
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/ Stephen W. Everett
By:--------------------------------------
Name: Stephen W. Everett
Title: President and Chief Executive
Officer
LENDER:
KEYBANK NATIONAL ASSOCIATION
/s/ T.J. Purcell
By:-------------------------------------
Name: Thomas J. Purcell
Title: Senior Vice President
EXHIBIT A
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Amendment No. 6 to Credit Agreement, dated as of
February 27, 2009. 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.
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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 of Adel, LLC
DCA of Aiken, LLC
DCA of Barnwell, LLC
DCA of Calhoun, LLC
DCA of Camp Hill, LLC
DCA of Central Valdosta, LLC
DCA of Chesapeake, LLC
DCA of Columbus, LLC
DCA of Edgefield, LLC
DCA of Fitzgerald, LLC
DCA of Hyattsville, LLC
DCA of Lemoyne, Inc.
DCA of Manahawkin, Inc.
DCA of Mechanicsburg, LLC
DCA of North Baltimore, LLC
DCA of Norwood, LLC
DCA of Rockville, LLC
DCA of Royston, LLC
DCA of Selinsgrove, LLC
DCA of So. Ga., LLC
DCA of South Aiken, LLC
DCA of Warsaw, LLC
DCA of Wellsboro, Inc.
Keystone Kidney Care, Inc.
York Realty Managers, LLC
By:--------------------------------------
Name: Stephen W. Everett
Title: President of each of the foregoing
Guarantors