EXHIBIT D
GUARANTY
In consideration of, and as a material inducement to, BRE/METROCENTER LLC,
a Delaware limited liability company, (the "Landlord"), executing and delivering
simultaneously herewith, in reliance upon this Guaranty, that certain Lease
dated August ___, 2002 (the "Lease"), between Landlord and DCA OF CHEVY CHASE,
LLC, a Maryland limited liability company (the "Tenant"), the undersigned,
DIALYSIS CORPORATION OF AMERICA, a Florida corporation (the "Guarantor"), hereby
unconditionally and absolutely guarantees unto Landlord, its successors and
assigns, the full, prompt and complete payment by Tenant of the Rent (which
shall include only the Basic Monthly Rent, additional rent, increases in the
Basic Cost over the Initial Cost, increases in ground rent payments, utilities
and similar rental payments, but exclusive of reimbursements and charges for any
other defaults or other failures by Tenant to perform under the Lease) payable
by Xxxxxx during the first two (2) lease years of the Term of the Lease.
Guarantor does hereby waive notice of any and all defaults on the part of
Tenant, waives acceptance and notice of acceptance of this Guaranty, and waives
all demands for payment and/or performance; and Guarantor agrees that no delay
on the part of Landlord in enforcing any of its rights or remedies or insisting
thereupon, nor any extension of time nor any changes or modifications in or to,
or in connection with the Lease, shall in any way limit, affect or impair the
liability of Guarantor hereunder; and Guarantor hereby expressly consents to and
approves thereof with the same force and effect as though its written consent
had been given to each of such delays, extensions, changes and modifications.
GUARANTOR DOES HEREBY WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR
COUNTERCLAIM BROUGHT BY LANDLORD ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE LEASE, THE USE AND OCCUPANCY OF THE PREMISES, OR IN
ANY WAY CONNECTED WITH THIS GUARANTY.
This Guaranty is independent of and in addition to any security or other
remedies which Landlord has or may have for the performance of any of the
obligations on the part of Tenant; and Guarantor agrees that Landlord shall not
be required to resort to any other security or other remedies before proceeding
upon this Guaranty, but that Xxxxxxxx may proceed hereunder against Guarantor at
any time it sees fit, independently of or concurrently with any other remedies
it may have.
If Guarantor is a corporation and is merged into or with any other company,
firm or corporation, the resulting merged company, firm or corporation shall
become liable as Guarantor under this Guaranty to the same extent as the
original named Guarantor hereunder.
If Guarantor is a corporation or a partnership (general or limited), firm
or other entity, the officers or parties executing this Guaranty on behalf of
the Guarantor hereby jointly and severally warrant and represent that Guarantor
has full power and authority to guarantee the Lease and to make and execute this
Guaranty and that this Guaranty is fully and legally binding upon Guarantor and
its property and assets.
If this Guaranty is executed by two or more corporations, individuals,
firms, partnership (general or limited) or other entities (or any combination
thereof) the liability of said parties executing this Guaranty shall be joint
and several.
This Guaranty shall be binding upon the undersigned, the undersigned's
successors and assigns, and shall inure to the benefit of Landlord, its
successors and assigns, and to the benefit of any successors to the interest of
Landlord under the Lease and/or to the Building in which the premises demised
under the Lease are situate.
Despite the foregoing, (a) Guarantor's liability under this Guaranty is
limited to the sum of (i) the Rent (as defined in the first paragraph of this
Guaranty) that is payable under the first two (2) lease years of the Term (and
no other obligations of Tenant) and (ii) all reasonable attorneys' fees incurred
by Landlord in connection with enforcing the Guarantor's obligations under this
Guaranty, and (b) from and after the date that Tenant has fully paid all of the
Rent that is due under the Lease during the first (1st) two (2) lease years of
the Term, this Guaranty shall be of no further force or effect.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty under
seal as of the ___ day of August _____, 2002.
DIALYSIS CORPORATION OF AMERICA,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxxxx (SEAL)
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Name: XXXXXX X. XXXXXXXX
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Title: Chief Executive Officer and
Chairman of the Board
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State of New Jersey )
) to wit:
County of Bergen )
On this the ______ day of August, 2002, before me, the subscriber, a Notary
Public in and for the jurisdiction aforesaid, personally appeared XXXXXX X.
XXXXXXXX, who acknowledged himself to be the CH. OF BD. & CEO of Dialysis
Corporation of America, and that he, as such, being authorized so to do,
executed the foregoing and annexed Guaranty for the purposes contained therein,
by signing the name of the corporation by himself as CH. OF BD. & CEO.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxx
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Notary Public of New Jersey
My Commission Expires: March 6, 2005
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