Exhibit 99.1
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LOAN NUMBER LOAN NAME ACCT. NUMBER NOTE DATE INITIALS
7320000152-101 Dialysis Corporation of 04/03/06 TSJ
America
NOTE AMOUNT INDEX (w/Margin) `RATE MATURITY DATE LOAN PURPOSE
$633,695.05 Wall Street Journal 7.750% 04/03/11 Commercial
Prime
Creditor Use Only
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PROMISSORY NOTE
(Commercial - Single Advance)
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DATE AND PARTIES. The date of this Promissory Note (Note) is April 3. 2006,
The parties and their addresses are:
LENDER:
AMERICAN BANKING COMPANY DBA AMERIS
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Valdosta. Georgia 31602
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BORROWER:
DIALYSIS CORPORATION OF AMERICA
a Florida Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1. DEFINITIONS. As used in this Note, the terms have the following meanings:
▇. ▇▇▇▇▇▇▇▇. The pronouns "I," "me," and "my" refer to each Borrower
signing this Note, individually and together. "You" and "Your" refer to
the Lender.
B. Note, Note refers to this document, arid any extensions, renewals,
modifications end substitutions of this Note.
C. Lean. Loan refers to this transaction generally, including obligations
and duties arising from the terms of all documents prepared or sub-flitted
for this transaction such as applications, security agreements,
disclosures or notes, end this Note.
▇. ▇▇▇▇, Documents. Loan Documents refer to all the documents executed as
a part of or in connection with the Loan.
E. Property. Property is any property, real, personal or intangible, that
secures my performance of the obligations of this Loan.
F. Percent. Rates and rate change limitations are expressed as annualized
percentages.
2. REFINANCING. This Note will pay off the following described note(s):
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Note Date Note Number Note Amount
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April 3, 2001 #4670003369-101 $787,500.00
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The remaining balance of the note listed in the table above is $633,395.05.
3. PROMISE TO PAY. For value received, I promise to pay you or your order, at
your address, or at such other location, as you may designate, the principal
sum of $633,696.05 (Principal) plus interest from April 3, 2006 on the unpaid
Principal balance until this Note matures or this obligation is accelerated.
4. INTEREST. Interest will accrue on, the unpaid Principal balance of this
Note at the rate of 7.750 percent (Interest Rate) until April 4, 2006, after
which time it may change as described in the Variable Rate subsection.
A. Interest After Default. If you declare a default under the terms of
this Loan, including for failure to pay in full at maturity, you may
increase the Interest Rate otherwise payable as described in this
section. In such event, interest will accrue on the unpaid Principal
balance of this Note at 16.000 percent until paid in full.
B. Maximum Interest Amount. Any amount assessed or collected as Interest
under the terms of this Note will be limited to the maximum lawful amount
of interest allowed by state or federal law, whichever is greater. Amounts
collected in excess of the maximum lawful amount will be applied first to
the unpaid Principal balance. Any remainder will be refunded to me.
C. Statutory Authority. The amount assessed or collected on this Note is
authorized by the Georgia usury laws under Ga. Code title 7, ch. 4.
D. Accrual. Interest accrues using an Actual/360 days counting method.
E. Variable Rate. The Interest Rate may change during the term of this
transaction.
(1) Index. Beginning with the first Change Date, the Interest Rate will
be based on the following Index: the base rate on corporate loans
posted by at least 75% of the nation's 30 largest banks known as the
Wall Street Journal Prime Rate.
The Current Index is the most recent index figure available on each
Change Date. You do not guaranty by selecting this Index, or the
margin, that the Interest Rate on this Note will be the same rate you
charge on any other loans or class of loans you make to me or other
borrowers. If this Index is no longer available, you will substitute a
similar index, You will give me notice of your choice.
(2) Change Date. Each date on which the Interest Rate may change is
called a Change Date. The Interest Rate may change April 4, 2008 and
daily thereafter.
(3) Calculation Of Change. On each Change Date you will calculate the
Interest Rate, which will be the Current index. The result f this
calculation will be rounded to the nearest 001 percent. Subject to any
limitations, this will b the Interest Rate until the next Change Date.
The new Interest Rate will become effective on each Change Date. The
Interest Rate and other charges on this Note will never exceed the
highest rate or charge allowed by law for this Note.
(4) Limitations. The Interest Rate changes are subject to the following
limitations:
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(a) Lifetime. The Interest Rate will never be greater than 8.000
percent or less than 6.750 percent.
(5) Effect Of Variable Rate. A change in the Interest Rate will have
the following effect on the payments: The amount of the final payment
will change.
5. ADDITIONAL CHARGES. As additional consideration, I agree to pay, or have
paid, these additional fees and charges.
A. Nonrefundable Fees and Charges. The following fees are earned when
collected and will not be refunded if I prepay this Note before the
scheduled maturity date.
Loan. A(n) Loan fee of $300.OO payable from the loan proceeds.
6. REMEDIAL CHARGES. In addition to interest or other finance charges, I
agree that I will pay these additional fees based on my method arid pattern
of payment. Additional remedial charges may be described elsewhere in this
Note.
A. Returned Check Charge. I agree to pay a fee not to exceed $25.00 or 5
percent of the face amount of the instrument, whichever is greater, for
each check, negotiable order of withdrawal or draft I issue in connection
with this Loan that is returned because it has bean dishonored.
7. PAYMENT. I agree to pay this Note in 60 payments. A payment of $6,000.00
will be due May 3. 2006, and on the 3rd day of each month thereafter. A final
payment of the entire unpaid balance of Principal and interest will be due
April 3, 2011. Any changes in the Interest Rate will affect the amount of
this payment.
Payments will be rounded to the nearest $.01. With the final payment I also
agree to pay any additional fees or charges owing and the amount of any
advances you have made to others on my behalf. Payments scheduled to be paid
on the 29th, 30th or 31st day of a month that contains no such day will,
instead, be made on the last day of such month.
If the amount of a scheduled payment does not equal or exceed interest
accrued during the payment period the unpaid portion will be added to, and
will be payable with, the next scheduled payment.
Each payment I make on this Note will be applied first to interest that is
due then to any charges that I owe other than principal and interest, and
finally to principal that is due. It you and I agree to a different
application of payments, we will describe our agreement on this Note, You may
change how payments are applied in your sole discretion without notice to me.
The actual amount of my final payment will depend on my payment record.
8. PREPAYMENT. I may prepay this Loan under the following terms and
conditions. This lean may be subject to a $300.00 prepayment fee. Any partial
prepayment will not excuse any later scheduled payments until I pay in full.
9. LOAN PURPOSE. The purpose of this Loan is to refinance long term financing
of commercial real estate.
10. SECURITY. This Loan is secured by the following, previously executed,
security instruments or agreements: DSD DTD 04/03/2001.
11. DEFAULT. I understand that you may demand payment in full if any of the
following occur:
A. Payments. I fail to make a payment in full when due.
B. Insolvency or Bankruptcy. The death, dissolution or insolvency of.
appointment of a receiver by or on behalf of, application of any debtor
relief law, the assignment for the benefit of creditors by or on behalf
of, the voluntary or involuntary termination or existence by, or the
commencement of any proceeding under any present or future federal or
state insolvency, bankruptcy, reorganization, composition or debtor relief
law by or against me or any co-signer, endorser, surety or guarantor of
this Note or any other obligations I have with you.
C. Business Termination. I merge, dissolve, reorganize, end my business or
existence, or a partner or majority owner dies or is declared legally
incompetent.
D. Failure to Perform. I fail to perform any condition or to keep any
promise or covenant of this Note.
E. Other Documents. A default occurs under the terms of any other Loan
Document.
F. Other Agreements. I am in default on any other debt or agreement I have
with you.
G. M4srepresantation. I make any verbal or written statement or provide
any financial information that is untrue, inaccurate, or conceals a
material fact at the time it is made or provided.
H. Judgment. I fall to satisfy or appeal any judgment against me.
I. Forfeiture. The Property is used in a manner or for a purpose that
threatens confiscation by a legal authority.
.J Name Change. I change my name or assume an additional name without
notifying you before making such a change.
K. Property Transfer. I transfer all or a substantial part of my money or
property.
L. Property Value. You determine in good faith that the value of the
Property has materially declined or is impaired.
M. Material Change. Without first notifying you, there is a material
change in my business, including management, and financial conditions.
N. Insecurity. You determine in good faith that a material adverse change
has occurred in my financial condition from the conditions set forth in
my most recent financial statement before the date of this Note or that
the prospect for payment or performance of the Loan is impaired for any
reason.
12. DUE ON SALE OR ENCUMBRANCE. You may, at your option, declare the entire
balance of this Note to be due and payable upon the creation of, or contract
for the creation of, any material lien, encumbrance, transfer or sale of all
or any significant part of the Property. This right is subject to the
restrictions imposed by federal law (12 C.F.R. 591), as applicable.
13. WAIVERS AND CONSENT. To the extent not prohibited by law, I waive
protest, presentment for payment, demand, notice of acceleration, notice of
intent to accelerate and notice of dishonor.
A. Additional Waivers By ▇▇▇▇▇▇▇▇. In addition, I, and any party to this
Note and Loan, to the extent permitted by law, consent to certain actions
you may take, and generally waive defenses that may be available based on
these actions or based on the status of a party to this Note.
(1) You may renew or extend payments on this Note, regardless of the
number of such renewals or extensions.
(2) You may release any Borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
(3) You may release, substitute or impair any Property securing this
Note.
(4) You, or any institution participating in this Note, may invoke your
right of set-off.
(5) You may enter into any sales, repurchases or participations of this
Note to any person in any amounts and I waive notice of such sales,
repurchases or participations.
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(6) I agree hat any of us signing this Note as a Borrower is authorized
to modify the terms of this Note or any instrument securing.
guarantying or relating to this Note.
B. No Waiver By Lender. Your course of dealing, or your forbearance from,
or delay in, the exercise of any of your rights, remedies, privileges or
right to insist upon my strict performance of any provisions contained in
this Note, or any other Loan Document, shall not be construed as a waiver by
you, unless any such waiver is in writing and is signed by you.
14. REMEDIES. After I default, and after you give any legally required notice
and opportunity to cure the default, you may at your option do any one or
mere of the following.
A. Acceleration. You may make all or any part of the amount owing by the
terms of this Note immediately due.
B. Sources. You may use any and all remedies you have under state or
federal law or in any Loan Document.
C. Insurance Benefits. You may make a claim for any and all insurance
benefits or refunds that may be available on my default.
D. Payments Made On My Behalf. Amounts advanced on my behalf will be
immediately due and may be added to the balance owing under the terms of
this Note, and accrue interest at the highest post-maturity interest rate.
E. Set-Off. You may use the right of set-off. This means you may set-off
any amount due and payable under the terms of this Note against any right
I have to receive money from you.
My right to receive money from you includes any deposit or share account
balance I have with you; any money owed to me on an item presented to you
or in your possession for collection or exchange; and any repurchase
agreement or other non-deposit obligation. "Any amount due and payable
under the terms of this Note" means the total amount to which you are
entitled to demand payment under the terms of this Note at the time you
set-off.
Subject to any other written contract, if my right to receive money from
you is also owned by someone who has not agreed to pay this Note, your
right of set-off will apply to my interest in the obligation and to any
other amounts I could withdraw on my sole request or endorsement.
Your right of set-off does not apply to an account or other obligation
where my rights arise only in a representative capacity. It also does not
apply to any Individual Retirement Account or other tax-deferred
retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set-off against any of my accounts. I agree to hold you
harmless from any such claims arising as a result of your exercise of your
right of set-off.
F. Waiver. Except as otherwise required by law, by choosing any one or
more of these remedies you do not give up your right to use any other
remedy. You do not waive a default if you choose not to use a remedy. By
electing not to use any remedy, you dc not waive your right to later
consider the event a default end to use any remedies if the default
continues or occurs again.
15. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the
extant permitted by law, I agree to pay all expenses of collection,
enforcement or protection of your rights and remedies under this Note or any
other Loan Document. Expenses include, but are not limited to. attorneys'
fees, court costs, and other legal expenses. If this debt is collected by or
through an attorney after maturity. I agree to pay 15 percent of the
Principal and interest owing as attorneys' fees, These expenses are due and
payable immediately. If not paid immediately, these expenses will bear
interest from the date of payment until paid in full at the highest interest
rate in effect as provided for in the terms of this Note. All fees and
expenses will be secured by the Property I have granted to you, if any. In
addition, to the extant permitted by the United States Bankruptcy Code, I
agree to pay the reasonable attorneys' fees incurred by you to protect your
rights and interests in connection with any bankruptcy proceedings initiated
by or against me.
16. COMMISSIONS. I understand and agree that you (or your affiliate) will
earn commissions or fees on any insurance products, and may earn such fees on
other services that I buy through you or your affiliate.
17. WARRANTIES AND REPRESENTATIONS. I make to you the following warranties
and representations which will continue as long as this Note is in effect:
A. Power. I am duly organized, and validly existing and in good standing
in all jurisdictions in which I operate. I have the power and authority to
enter into this transaction and to carry on my business or activity as it
is now being conducted and, as applicable, am qualified to do so in each
jurisdiction in which I operate.
B. Authority. The execution, delivery and performance of this Note and the
obligation evidenced by this Note are within my powers, have been duly
authorized, have received all necessary governmental approval, will not
violate any provision of law, or order of court or governmental agency,
and will not violate any agreement to which I am e party or to which I am
or any of my Property is subject.
C. Name and Piece of Business. Other then previously disclosed in writing
to you I have not changed my name or principal place of business within
the last 10 years and have not used any other trade or fictitious name.
Without prior notice to you, I do not and will not use any other name and
will preserve my existing name, trade names and franchises.
18. APPLICABLE LAW. This Note is governed by the laws of Georgia, the United
States of America, and to the extent required, by the laws of the
jurisdiction where the Property is located, except to the extent such state
laws ere preempted by federal law. In the event of a dispute, the exclusive
forum, venue and place of jurisdiction will be in Georgia, unless otherwise
required by law.
19. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. My obligation to pay the
Loan is independent of the obligation of any other person who has also agreed
to pay it. You may sue me alone, or anyone else who is obligated on the Loan,
or any number of us together, to collect the Loan. Extending the Loan or new
obligations under the Loan, will not effect my duty under the Loan and I will
still be obligated to pay the Loan. This Note shall inure to the benefit of
and be enforceable by you end your successors and assigns and shall be
binding upon and enforceable against me and my personal representatives,
successors, heirs and assigns.
20. AMENDMENT, INTEGRATION AND SEVERABILITY. This Note may not be amended or
modified by oral agreement. No amendment or modification of this Note is
effective unless made in writing and executed by you and me. This Note and
the other Loan Documents are the complete and final expression of the
agreement. If any provision of this Note is unenforceable, then the
unenforceable provision will be severed end the remaining provisions will
still be enforceable.
21. INTERPRETATION. Whenever used, the singular includes the plural and the
plural includes the singular. The section headings are for convenience only
and are not to be used to Interpret or define the terms of this Note.
22. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
Borrower will be deemed to be notice to all Borrowers. I will inform you in
writing of any change in my name, address or other application information. I
will provide you any financial statement or information you reasonably
request. All financial statements and information I give you will be correct
and complete in all material respects. I agree
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to sign, deliver, and file any additional documents or certifications that
you may consider necessary to perfect, continue, and preserve my obligations
under this Loan end to confirm your lien status on any Property. Time is of
the essence.
23. CREDIT INFORMATION. I agree to supply you with whatever information you
reasonably request. You will make requests for this information without undue
frequency, and will give me reasonable time in which to supply the
information.
24. ERRORS AND OMISSIONS. I agree, if requested by you, to fully cooperate in
the correction, if necessary, in the reasonable discretion of you of any end
all loan closing documents so that all documents accurately describe the loan
between you and me. I agree to assume all costs including by way of
illustration and not limitation, actual expenses, reasonable legal fees and
marketing losses for failing to reasonably comply with your requests within
thirty (30) days.
25. SIGNATURES. By signing under seal, I agree to the terms contained in this
Note. I also acknowledge receipt of a copy of this Note.
BORROWER:
Dialysis Corporation of America
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By---------------------------------- (Seal)
▇▇▇▇▇▇ ▇ ▇▇▇▇▇, Chief Financial Officer
LENDER:
American Banking Company dba Ameris
/s/ ▇▇▇ ▇. ▇▇▇▇▇
By---------------------------------- (Seal)
▇▇▇ ▇. ▇▇▇▇▇, President
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