ex10-1.htm


    
      

    

    Exhibit 10.1

     

    
      


      ESCROW
AGREEMENT

      


       

      THIS
ESCROW AGREEMENT (this “Agreement”) is made and
entered into this 14th day of October, 2008, by and among ST. THOMAS MORE
DIALYSIS CENTER, LLC, a Maryland limited liability company (the “Seller”); DIALYSIS CORPORATION
OF AMERICA, a Florida corporation (“DCA”) and anticipated parent and sole member
of a limited liability company entity to be organized by DCA (the “Subsidiary”)
for the purpose of effecting the transaction described below (for purposes of
this Agreement DCA and its to-be-organized Subsidiary are referred to as the
“Purchaser”); and SACK,
HARRIS & MARTIN, P.C. (“Escrow
Agent”).  Reference is made to that certain Letter of Intent
(the “LOI”) to enter
into an Asset Purchase Agreement (the “Purchase Agreement”) by and
between Seller and Purchaser which LOI is incorporated herein by
reference.  Defined terms used herein and not otherwise defined shall
have the meanings given to such terms in the LOI.

       

      1.    Purchaser
and Seller have agreed to select Escrow Agent to serve as escrow agent with
respect to the deposit of $100,000.00 constituting part of the Purchase Price
(the “Deposit”) being
made by Purchaser pursuant to the LOI.  The purpose of this Agreement
is to prescribe instructions governing the services of Escrow Agent with respect
to the Deposit and the closing of the transaction contemplated by the
LOI.

       

      2.    Seller
and Purchaser hereby engage Escrow Agent to serve as escrow agent with respect
to the Deposit made by Purchaser pursuant to the terms of the LOI, a copy of
which has been delivered to and received by Escrow Agent.  Escrow
Agent hereby accepts such engagement.  Any reasonable closing or
escrow fees of Escrow Agent shall be paid one-half by Seller and Purchaser (up
to a maximum of $500.00).

       

      3.    Escrow
Agent acknowledges receipt of the Deposit and agrees to (i) place the Deposit
into a federally insured, interest-bearing account and (ii) not commingle the
Deposit with any funds of Escrow Agent or others.  Interest shall be
maintained in the escrow account as a part of the Deposit and credited to DCA
initially for tax purposes until such time as the Subsidiary is
organized.  DCA’s Federal Taxpayer Identification Number is
59-1757642.

       

      4.    The
parties hereto acknowledge that the Deposit is a good faith gesture by the
Purchaser in connection with the execution of the LOI and that notwithstanding
the provisions of the LOI the same shall become non-refundable only upon the
following: (a) after the  closing of the transaction on the “Closing
Date” as such date is set forth in the Purchase Agreement, (b) if prior to the
execution of the Purchase Agreement, Purchaser acts in bad faith by failing or
refusing to negotiate the terms of the transaction or the Purchase Agreement or
related agreements or instruments (the burden of proof of such bad faith
residing with the Seller), or (c) after the execution of the Purchase Agreement
the Purchaser breaches or defaults under the terms of the Purchase Agreement
(after a reasonable cure period) or fails to timely close the transaction on the
Closing Date despite the satisfaction by Seller of all of its representations,
warranties and covenants as well as its conditions to closing as set forth in
the Purchase Agreement.  Other than as set forth above, to the extent
that negotiations prior to execution of the Purchase Agreement cease, or the
Purchase Agreement after execution is terminated for any reason other than as
set forth above, or Seller in bad faith fails to proceed to closing of the
transaction contemplated by the Purchase Agreement, the Deposit together with
all accrued interest thereon shall be promptly returned to Purchaser by the
Escrow Agent.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      5.    Escrow
Agent shall disburse the Deposit in accordance with the terms
hereof.  At the time of the Closing, if any, if the Deposit has not
been disbursed previously in accordance with the LOI, then Escrow Agent shall
disburse the Deposit to Seller to be credited against the Purchase
Price.

       

      6.    Escrow
Agent shall be entitled to rely at all times on joint written instructions given
by Seller and Purchaser, as the case may be and as required hereunder, without
any necessity of verifying the authority therefor.

       

      7.    In the
event that there is a dispute regarding the disbursement or disposition of the
Deposit, or in the event Escrow Agent shall receive conflicting written demands
or instructions with respect thereto, then Escrow Agent shall withhold such
disbursement or disposition until notified by both parties that such dispute is
resolved, or Escrow Agent may file a suit of interpleader at the cost and
expense of Seller and Purchaser.

       

      8.    The
addresses for proper notice under this Agreement are as contained in the
LOI.  Any party may from time to time by written notice to the other
parties designate a different address for notices within the United States of
America.

       

      9.    The
instructions contained herein may not be modified, amended or altered in any way
except by a writing (which may be in counterpart copies) signed by Seller,
Purchaser and Escrow Agent.

       

      10.         
Purchaser
and Seller reserve the right, at any time and from time to time, to substitute a
new escrow agent in place of Escrow Agent.

       

      11.         
This
Agreement will be construed under, governed by and enforced in accordance with
the laws of the State of Maryland, excluding its conflicts of laws
provisions.

       

      12.         
The
parties acknowledge that: (i) Escrow Agent is acting at their request and for
their convenience; (ii) Escrow Agent shall not be deemed to be the agent of
either of the parties; and (iii) Escrow Agent shall not be liable to either of
the parties for any action or omission on its part taken or made in good faith
and not in disregard of this Agreement or the LOI, but shall be liable for its
grossly negligent acts or omissions, its willful misconduct and for any loss,
cost or expense incurred by Seller or Purchaser resulting from Escrow Agent’s
mistake of law respecting the scope or nature of its
duties.   Notwithstanding the foregoing, if Escrow Agent is also
acting as the title company under the terms of the LOI, nothing in this Section
11 shall limit the liability of Escrow Agent under the title policy, and if
Escrow Agent is an agent of the title company, nothing in this Section 11 shall
limit the liability of the title company under any insured closing letter issued
for the benefit of Purchaser or any lender.

       

      13.         
To the
fullest extent permitted by law, the Escrow Agent hereby irrevocably consents
and agrees, for the benefit of each of the Purchaser and Seller, that any legal
action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, shall be brought in any state or federal court located in Prince
George’s County, Maryland (a “Court”), and hereby
irrevocably accepts and submits to the exclusive jurisdiction of each such Court
with respect to any such action, suit or proceeding.  The Escrow Agent
waives any objection that it may now or hereafter have to the laying of venue of
any of the aforesaid actions, suits or proceedings brought in any such Court and
hereby further agrees not to plead or claim in any such Court that any such
action, suit or proceeding brought therein has been brought in an inconvenient
forum.  The Escrow Agent agrees that (i) to the fullest extent
permitted by law, service of process may be effectuated hereinafter by mailing a
copy of the summons and complaint or other pleading by certified mail, return
receipt requested, at its address set forth above and (ii) all notices that are
required to be given hereunder may be given by the attorneys for the respective
parties.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      14.         
Except as
otherwise set forth above, this Agreement is intended solely to supplement and
implement the provisions of the LOI and is not intended to modify, amend or vary
any of the rights or obligations of Purchaser or Seller under the
LOI.

       

      15.         
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument; provided, however, in no event shall this Agreement be
effective unless and until signed by all parties hereto.

       

      15.          The
undersigned parties have the power and authority to execute this Agreement and
it is their legal, valid and binding obligation, enforceable in accordance with
its terms.

       

       

      [Signature
Page Follows]

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.

       

      
        	 
      	
                ESCROW
      AGENT:

              
	 
      	 
      	 
      	 
      
	 
      	
                SACK,
      HARRIS & MARTIN, P.C.

              
	
                      

              	 
      	 
      	 
      
	 
      	
                By:

              	
                

              	 
      
	 
      	

                Name:

              	
                Jeffrey
      J. Renzulli

              	 
      
	 
      	

                Title:

              	
                Partner

              	 
      
	 
      	 
      	 
      	 
      
	 
      	SELLER:	 
      
	 
      	 
      	 
      	 
      
	 
      	ST.
      THOMAS MORE DIALYSIS CENTER, LLC
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                

              	 
      
	 
      	

                Name:

              	
                Matthew
      W. Neiswanger

              	 
      
	 
      	

                Title:

              	
                Manager

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	PURCHASER:
	 
      	 
      	 
      	 
      
	 
      	DIALYSIS
      CORPORATION OF AMERICA
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Stephen W. Everett

              	 
      
	 
      	

                Name:

              	
                Stephen
      W. Everett

              	 
      
	 
      	

                Title:

              	
                President
      and CEO