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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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<PAGE>
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:
<PAGE>
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
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