LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made this 19 day of August, 2003 (the
"Execution Date"), by and between Fisher Scheler, LLC, a Pennsylvania limited
liability company with its principal offices located at 231 Old Philadelphia
Pike, Douglassville, Pennsylvania 19518 (the "Landlord") and DCA of
Pottstown, LLC, a Pennsylvania limited liability company, having an office at
c/o Dialysis Corporation of America, 1344 Ashton Road, Suite 201, Hanover,
Maryland 21076 (the "Tenant").
1 Premises
Landlord, in consideration of the rents and covenants hereinafter mentioned,
does demise and lease unto Tenant, all that certain space consisting of 5,966
square feet of rentable space, with specifications for the Premises attached
as Exhibit A, in Landlord's property (the "Premises"), located within 5 South
Sunnybrook Road, Pottstown, Pennsylvania, (the improvements and the land upon
which they are erected are hereinafter referred to as the "Building"), to be
used as an out-patient medical and dialysis center and related services
necessary to support the operations as a dialysis center (the "Use").
2 Term
This Lease is for the term of ten (10) years, commencing on the Commencement
Date defined below (the "Term").
3 Commencement of Terms
(A) The term and payment of Rent shall commence on the "Commencement Date"
which shall be defined as six (6) months from the Execution Date of this
Lease.
(B) The Premises will be provided by Landlord to Tenant in the current "as
is" "shell condition." All interior alterations and renovations of the
Premises shall be the responsibility of Tenant, with the approval of all
plans and specifications to be approved by Landlord, which approval
shall not be unreasonably delayed or withheld; however, Landlord will
provide Tenant with up to Two Hundred Eight Thousand Eight Hundred Ten
and 00/100 Dollars ($208,810.00) ($35.00 per rentable square foot) (the
"Construction Allowance") as reimbursement to Tenant for the cost of
performing alterations and improvements to the Premises (the "Tenant's
Work"). The Construction Allowance shall also be used to cover the cost
of exterior alterations performed by Landlord at Tenant's request
including, but not limited to, the installation of an additional
sidewalk and the expansion of the exterior door. Landlord shall pay the
Construction Allowance to Tenant within thirty (30) days after
completion of Tenant's Work in accordance with the terms of this Lease.
Landlord shall accommodate and shall not interfere with Tenant's
contractors with respect to such alterations and renovations. Tenant
shall secure and pay for all necessary construction and occupancy
permits.
(C) Tenant shall secure and file a mechanic's lien waiver from all
contractors supplying more than Ten Thousand and 00/100 Dollars
($10,000.00) worth of labor and/or improvements to the Premises in
connection with the Tenant's Work. Tenant shall pay promptly any
contractors and materialmen who supply labor, work or materials to
Tenant at the Premises and shall take all steps permitted by law in
order to avoid the imposition of any mechanic's lien upon all or any
portion of the Building. Should any such lien be filed for work
performed for Tenant other than by Landlord, Tenant shall bond against
or discharge the same within twenty (20) days after Tenant has notice
that the lien or claim is filed regardless of the validity of such lien
or claim. Except as provided in Section 6, nothing in this Lease is
intended to authorize Tenant to do or cause any work to be done or
materials to be supplied for the account of Landlord, all of the same to
be solely for Tenant's account and at Tenant's risk and expense.
Throughout this Lease, the term "mechanic's lien" is used to include any
lien, encumbrance or charge levied or imposed upon all or any portion
of, interest in or income from the Premises on account of any
mechanics', laborers', materialmen's or construction lien or arising out
of any debt or liability to or any claim of any contractor, mechanic,
supplier, materialman or laborer hired at the request of Tenant, and
shall include any mechanics' notice of intention to file a lien given to
Landlord or Tenant, any stop order given to Landlord or Tenant, any
notice of refusal to pay naming Landlord or Tenant and any injunctive or
equitable action brought by any person claiming to be entitled to any
mechanics' lien for work performed at the request of the Tenant.
4 Base Rent
(A) The Base Rent for the Use of the Premises during each of the first two
(2) years of the Term shall be Eighty Three Thousand Five Hundred
Twenty-Four and 00/100 Dollars ($83,524.00) per year (the "Base Rent")
to be paid in monthly installments of Six Thousand Nine Hundred Sixty
and 33/100 Dollars ($6,960.33), increasing three percent (3%) each of
the following eight (8) years of the Term, payable monthly in advance on
the due date, which is the first day of each calendar month during the
Term.
(B) Tenant shall pay to Landlord during the Term of the Lease the Base Rent,
without notice or demand, in the monthly installments, in advance on the
first day of each calendar month of the Term. The first month's
installment of the Base Rent shall be payable upon the Execution Date.
If the Commencement Date is other than the first day of a calendar
month, then the installments of the Rent for the first month of the term
shall be adjusted proportionately, and the first full month's Rent shall
be payable on the first day of the first full calendar month of the Term
which shall include the adjustment for the first month of the Term.
(C) Base Rent, Additional Rent (hereinafter sometimes collectively referred
to as "Rent") and all other sums payable by Tenant to Landlord hereunder
shall be paid, without set-off or deduction, in lawful currency of the
United States of America to Landlord at the address set forth herein, or
at such other address as Landlord may from time to time designate in
writing to Tenant. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent or other sums hereunder will cause Landlord
to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, processing and
accounting charges, and late charges which maybe imposed upon Landlord
by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent or any sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days
after said amount is due, then Tenant shall pay to Landlord a late
charge of five (5%) percent of such overdue amount. The parties agree
that such late charges represent a fair and reasonable estimate of the
cost that Landlord will incur by reason of the late payment by Tenant.
If Tenant fails to pay any Rent for a period of thirty (30) days, then
interest on the amount not paid shall accrue at the rate of six percent
(6%) per annum until paid in full.
5 Additional Rent
(A) Tenant shall pay an Operating Expense Allowance of Twenty Thousand Eight
Hundred Eighty-One and 00/100 Dollars ($20,881.00) per year. Tenant
shall pay to Landlord the Operating Expense Allowance in equal monthly
installments of One Thousand Seven Hundred Forty and 08/100 Dollars
($1,740.08), the first of which shall be payable upon the Commencement
Date. If the Commencement Date is other than the first day of a
calendar month, then the Operating Expense Allowance for the first
calendar month of the Term shall be adjusted proportionately and the
first full month's Operating Expense Allowance will be paid on the first
day of the first full calendar month of the Term.
(B) If the Landlord's Operating Expense for any Operating Year shall be
greater than the Operating Expense Allowance, Tenant shall pay to
Landlord as Additional Rent an amount equal to Tenant's Proportionate
Share of the difference (the amount of Tenant's Proportionate Share of
such difference is hereinafter referred to as the "Operating Expense
Adjustment"). If the Landlord's Operating Expense for any Operating
Year shall be less than the Operating Expense Allowance, then the excess
payment made by Tenant as reflected in the Operating Expense Adjustment
(as defined below) shall be paid by Landlord to Tenant on the Expense
Adjustment Date (as defined below); provided if such occurs during a
year in which the Term of this Lease ends, then Landlord shall promptly
prepare an Operating Expense Allowance as of the end of the Term and
such excess payment by Tenant as reflected in the Operating Expense
Adjustment shall be paid simultaneously with the issuance of such
Operating Expense Adjustment. If Tenant occupies the Premises or
portion thereof for less than a full Operating Year, the Operating
Expense Adjustment will be calculated in proportion to the amount of
time in such Operating Year that Tenant occupied the Premises.
Such Additional Rent shall be paid in the following manner: within one
hundred twenty (120) days following the end of the first and each
succeeding Operating Year, Landlord shall furnish Tenant an Operating
Expense Statement certified as true and correct setting forth (i) the
Operating Expense for the preceding Operating Year, (ii) the Operating
Expense Allowance and (iii) Tenant's Operating Expense Adjustment for
such Operating Year. Within thirty (30) days following the receipt of
such Operating Expense Statement (the "Expense Adjustment Date"), Tenant
shall pay to Landlord as Additional Rent the Operating Adjustment for
the preceding Operating Year. The actual Operating Expense
calculated at the end of each Operating Year shall become the Operating
Expense Allowance for the immediately succeeding year.
Commencing with the first month of the second Operating Year, Tenant
shall pay to Landlord, in addition to the Operating Expense Allowance,
on account of the Operating Expense Adjustment for the current Operating
Year, monthly installments in advance equal to one-twelfth (1/12) of the
estimated Operating Expense Adjustment for the current Operating Year.
These methods of calculation and payment shall continue for the entire
Term and any Renewal Term.
As used in this Lease, the following words and terms shall be defined as
hereinafter set forth:
(1) Except as provided below in subsection (4)(c) below, "Tenant's
Proportionate Share" shall be 52.4% of the total cost of the
Building's Operating Expense.
(2) "Operating Year" shall mean each calendar year, or other period of
twelve (12) months as hereafter may be adopted by Landlord as its
fiscal year, occurring during the Term.
(3) "Operating Expense Statement" shall mean a statement in writing
signed by Landlord setting forth in reasonable detail (a) the
Operating Expense for the preceding Operating Year, (b) the
Operating Expense Allowance and (c) the Tenant's Operating Expense
Adjustment for such Operating Year, or portion thereof. The
Operating Expense for each Operating Year shall be available for
inspection by Tenant at Landlord's office during normal business
hours.
(4) Operating Expenses are as follows:
(a) Real estate taxes and other taxes or charges levied in lieu of
such taxes, general and special public assessments, charges
imposed by any governmental authority pursuant to anti-pollution
or environmental legislation;
(b) Premiums and fees for fire and extended coverage insurance, and
public liability insurance, all in amounts and coverages (with
additional policies against additional risks) as may be required
by Landlord or the holder of any mortgage on the Building
reasonable for the area and for such Building;
(c) Water and sewer service charges, and common area electric
charges; PROVIDED, HOWEVER, that since Tenant's Use of the
Premises will require water usage in excess of amounts used by
the other tenants of the building, Landlord shall monitor the
total water usage in the Building and Landlord may, at
Landlord's cost, install a meter in the pipe bringing water to
the Premises. Tenant shall pay monthly (or in whatever
intervals Landlord
receives bills from the water authority) for the water it uses
in excess of its Proportionate Share. As the sewer bills are
derived from the amount of water used in the Building, Tenant
shall pay the excess sewer charges that are proportionate to the
water usage;
(d) Maintenance and repair costs, including those described in
Section 6(c) below, but excluding those described in Sections
6(a) and (b), repairs and replacements of supplies and
equipment, snow removal and paving, lawn and general grounds
upkeep, maintenance and repair, and the costs of all labor,
material and supplies incidental thereto;
(e) If Landlord is also a Tenant in the Building, management fees in
the amount of Three Thousand and 00/100 Dollars ($3,000.00) per
year payable to the managing agent for the Building. If
Landlord is not a Tenant in the Building, management fees equal
to four percent (4%) of Tenant's Base Rent per year payable to
the managing agent for the Building; and
(f) Any and all other expenditures of Landlord incurred in
connection with the operation, maintenance and repair of the
Building which are properly expensed in accordance with
generally accepted accounting principles consistently applied in
the operation, maintenance and repair of a first-class office
building facility.
(5) The term "Operating Expenses" shall not include maintenance and
repair described in Sections 6(a) and (b), depreciation of the
Building or equipment therein; interest; net income, franchise or
capital stock taxes payable by Landlord; executive salaries; real
estate brokers' commissions or the costs of services provided
specially for any particular tenant at such tenant's expense and not
uniformly available to all tenants of the Building.
6 Landlord's Services
Landlord shall:
(a) Arrange for and maintain all required utility services to the
Premises, PROVIDED, HOWEVER, that Landlord shall not be liable to
Tenant for any loss or damage arising from interruption in such
utility services except as may be caused by any act, omission or
negligence of the Landlord and any of its employees, agents,
servants, contractors or other representatives (collectively
"Landlord Representatives").
(b) Maintain and make all structural repairs to the foundations,
concrete floor slabs, exterior walls, steel frame (including
columns), roof and other structural components of the Building
required for safety, tenantability and compliance with proper orders
of governmental authorities, and Landlord shall make such repairs
within thirty (30) days of written notice from Tenant that such
repair is needed. In no event shall Landlord be obligated under
this paragraph to repair any damage caused by any act,
omission or negligence of Tenant or its employees, agents, invitees,
licensees, subtenants, or contractors ("Tenant Representatives").
(c) Maintain in good condition and repair the parking areas, and shall
insure adequate and free parking adjacent to the Premises of twenty-
five (25) parking spaces for the sole use of Tenant's patients and
staff with five (5) additional parking spaces marked for the
handicapped at the front of the Premises and to allow Tenant's
patients and staff to use additional parking facilities as may be
available at the Building; insure the Premises are free from pests
and all infestations; maintain landscaping around the Building in
such manner and capacity as to create a reasonably pleasing and
attractive environment; and insure Tenant has access to the Premises
24 hours per day, seven (7) days per week, 52 weeks each year. If
Landlord fails to arrange for the services, maintain and make the
repairs and replacements as provided for in this Section 6 within
thirty (30) days after Tenant's written notice of the issue, the
same may be accomplished or made by Tenant and such expense shall be
collectible by Tenant and paid by Landlord within thirty (30) days
after rendition of a bill therefor.
Tenant shall, throughout the Term and at its sole cost and expense, take good
care of the Premises and the other improvements now or hereafter comprising
all or any part of the Premises and the fixtures and appurtenances therein,
and maintain the same in good order and condition, and promptly at Tenant's
own cost and expense make all repairs necessary to maintain such good order
and condition, except for those described in Sections 6(a), (b) and (c) which
Landlord agrees to make. Tenant shall at its sole cost and expense repair
and replace all damage or injury to the Premises and the Building and to
fixtures and equipment caused by Tenant or Tenant Representatives or as the
result of all or any of them moving in or out of the Building or by
installation or removal of furniture, fixtures or other property, which
repairs and replacements shall be in quality and class equal to the original
work or installations. If Tenant fails to make such repairs or replacements
within thirty (30) days after Landlord's written notice that such repair is
needed, the same may be made by Landlord and such expense shall be
collectible as Additional Rent and paid by Tenant within thirty (30) days
after rendition of a bill therefor. In no event shall Tenant be obligated
under this Section 6 to repair any damage which repair or replacement is the
responsibility of the Landlord as provided for in this Lease, or is otherwise
caused by any act, omission or negligence of Landlord or Landlord
Representatives.
Landlord shall not be liable by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations,
additions or improvements in or to the Premises or the Building or to any
appurtenances or equipment therein, except if caused by the negligence of
Landlord or Landlord Representatives. Except as provided for in this Lease,
there shall be no abatement of Rent because of such repair, alterations,
additions or improvements.
Should there be a need to make any emergency repairs which are otherwise the
responsibility of Landlord as provided in this Lease, but due to the emergent
circumstances, Tenant makes such repairs, the cost thereof shall be
reimbursed by Landlord. In the event Landlord does not reimburse Tenant for
the cost of such emergency repairs within forty-five (45) days of Tenant's
written demand for payment to Landlord, the cost thereof shall be a deduction
from any Rent due hereunder.
7 No Other Services by Landlord
Landlord shall not be required to render any services to Tenant or to make
any repairs or replacements to the Premises, except as specifically provided
herein. Without limiting the generality of the foregoing, it is specifically
understood and agreed that Tenant shall be solely responsible for all charges
for the following services used, rendered or supplied to, upon or in
connection with the Premises throughout the Term and not shared or used by
any other person: electric, gas or any other utilities; telephone and/or
communication services; security system or services; janitorial services; and
trash and medical/hazardous waste removal.
The parties agree to indemnify and save each other harmless against any
liability or damages on account of the foregoing; and, in the event that any
such utilities or services are supplied or furnished by any governmental
corporation or authority, Tenant shall pay all bills for its use of such
utilities of the Premises promptly when they become due and shall at all
times during the Term hereof keep the Premises free and clear from any lien
that may attach thereto by reason of the non-payment of said bills.
8 Insurance
(A) Tenant, at Tenant's expense, shall maintain in effect, throughout the
Term, through insurance carriers reasonably satisfactory to Landlord:
(i) insurance against claims for personal injury (including death) and
property damage, under a policy of public liability insurance, in
amounts not less than One Million and 00/100 Dollars ($1,000,000.00)
combined single limit in respect of bodily injury (including death) and
One Hundred Thousand and 00/100 Dollars ($100,000.00) for property
damage; and (ii) such other insurance as may reasonably be required by
the holder of a mortgage on the Building. The insurance policy referred
to in subsection (i) above shall name both Landlord and Tenant as
insured parties.
(AA) Landlord shall obtain and maintain insurance on the Building, primarily
a policy of Combined Single Limit Bodily Injury and Property Damage
Insurance insuring against any liability arising out of the ownership or
maintenance of the Building and all areas appurtenant thereto in an
amount not less than combined single limit of One Million Dollars
($1,000,000). Landlord shall also obtain and maintain a policy or
policies of insurance covering loss or damage to the Building, providing
protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, flood (in the
event such is required by a lender having a lien on the Premises) and
special extended perils ("all risk" as such term is used in the
insurance industry).
(B) Prior to commencement of the Term, each of Landlord and Tenant shall
provide the other with certificates of the insurance policies herein
required. All policies shall provide that coverage thereunder may not
be reduced or terminated without at least thirty (30) days prior written
notice to Landlord or Tenant, as the case may be. Landlord and Tenant
shall furnish to the other copies of all policies herein required.
(C) Each of the parties hereto hereby releases the other from all liability
for all injury, loss or damage which may be inflicted upon persons or
property of such party, even if such liability results from the
negligence of the other party; PROVIDED, HOWEVER, that this release
shall be effective only (i) during such time as the applicable insurance
policy carried by such party name the other party as a co-insured or
contains a clause to the effect that this release shall not affect said
policy or the right of the insured to recover thereunder, and (ii) to
the extent of the coverage of such policy. If any policy does not
permit such a waiver, and if the party to benefit therefrom requests
that such a waiver be obtained, the other party agrees to obtain an
endorsement to its insurance policies permitting such waiver of
subrogation, if available, and if an additional premium is charged for
such waiver, the party benefiting therefrom shall pay same promptly upon
being billed therefor. Nothing in the foregoing is intended to require
the applicable party to reduce the deductible amounts of its insurance
below such amounts as of the date of execution of this Lease.
9 Casualty
(A) If the Premises are damaged by fire or other casualty, Tenant shall
promptly notify Landlord and Landlord shall repair damaged portions of
the Premises (but not any of Tenant's property therein or improvements
or alterations made by Tenant), except that if, in Landlord's reasonable
judgment, the damage would require more than sixty (60) days of work to
repair, or if the insurance proceeds (excluding rent insurance) which
Landlord anticipates receiving must be applied to repay any mortgages
encumbering the Building or are otherwise inadequate to pay the cost of
such repair, the Landlord shall have the right to terminate this Lease
by so notifying Tenant within thirty (30) days of Tenant's notice which
notice shall specify a termination date not less than fifteen (15) days
after its transmission. If Landlord is so required to repair, the work
shall be commenced promptly and completed with due diligence, taking
into account the time required for Landlord to procure said insurance
proceeds and construction delays due to shortages of labor or material
or other causes beyond Landlord's reasonable control.
(B) During the period when Tenant shall be deprived of possession of the
Premises by reason of such damage, Tenant's obligation to pay Rent shall
abate in the proportion which the damaged area of the Premises bear to
the entire Premises. Landlord represents to Tenant that at all times
during the term of this Lease it will carry insurance covering the loss
of the Rent payable under the term of this Lease.
10 Condemnation
(A) If all of the Premises are taken through the exercise of power of
eminent domain, this Lease shall terminate on the date when possession
of the Premises is required by the condemning authority. If only part
of the Premises is taken, then (i) if the condemnation award is
insufficient to restore the remaining portion of the Premises or if such
award must be applied to repay any mortgages encumbering the Building,
or (ii) if, in addition to a portion of the Premises, a portion of the
Building or Land is taken and Landlord deems it commercially
unreasonable to continue leasing all or a portion of the remaining
space in the Building, or (iii) if a substantial portion of the Premises
is so taken, and it is commercially impossible for Tenant to continue
its business within the Premises, then Landlord in the case of (i) and
(ii) above and Tenant in the case of (iii) above, shall have the right
to terminate this Lease on the date on which the condemned portion of
the Premises, Building or Land is required to be delivered to the
condemning authority, which right shall be exercisable by the exercising
party so notifying the other party no later than thirty (30) days prior
to such date.
(B) If this Lease is not so terminated after a partial condemnation, then
after the date when the condemned portion of the Premises is delivered
to the condemnor, the Rent shall be reduced in the proportion which the
condemned area bears to the entire area of the Premises, and Tenant's
Proportionate Share shall be reduced by the same proportion.
(C) Tenant shall have the right to claim against the condemnor only for
removal and moving expenses and business dislocation damages which may
be separately payable to Tenant in general under Pennsylvania law,
provided such payment does not reduce the award otherwise payable to
Landlord. Subject to the foregoing, Tenant hereby waives all claims
against Landlord with respect to a condemnation, and hereby assigns to
Landlord all claims against the condemnor including, without limitation,
all claims for leasehold damages and diminution in the value of Tenant's
leasehold estate.
11 Tenant's Fixtures
Tenant shall have the right to install trade fixtures, office machinery and
equipment (excluding alterations, improvements and additions which are
governed by Section 12) required by Tenant or used by it in its business,
provided that same do not impair the structural strength of the Building and
further provide that such fixtures, office machinery and equipment shall be
limited to items normally used in an outpatient kidney dialysis center.
Other than the foregoing, it is specifically understood and agreed that
Tenant shall not have the right to install or operate any electrical
equipment in the Premises (other than normal office machinery and equipment
such as typewriters, adding machines, and copiers) without Landlord's prior
written consent, which shall not be unreasonably withheld. Tenant shall
remove all such trade fixtures, office machinery and equipment prior to the
end of the Term, and Tenant shall repair and restore any damage to the
Premises and Building caused by such installation or removal.
12 Alterations
Tenant shall not, without on each occasion first obtaining Landlord's prior
written consent, which shall not be unreasonably withheld, make any
alterations, improvements or additions to the Premises, except that Tenant
may, without the consent of Landlord but with prior written notice to
Landlord, make minor improvements to the interior of the Premises provided
that: (i) they do not impair the structural strength, operation or value of
the Building, and (ii) Tenant shall take reasonable steps as permitted by law
to avoid the imposition of any mechanics' lien upon the Premises or Building.
All alterations, improvements and additions, except for minor alterations and
improvements, become part of the Premises and the property of Landlord
without payment therefor by Landlord and shall be surrendered to Landlord at
the end of the Term;
PROVIDED, HOWEVER, if so notified by Landlord, Tenant shall, prior to the end
of the Term, remove any and all such alterations and improvements made by
Tenant after initial occupancy, or the parts thereof specified by Landlord,
from the Premises and shall repair damage caused by installation and removal.
For purposes of this Section 12, "minor improvements" shall be defined as
those improvements costing no more than Two Thousand and 00/100 Dollars
($2,000.00).
13 Mechanics' Liens
Tenant shall not, in the making of any repairs or alterations, suffer or
permit any mechanics', laborers', materialmens' or construction lien to be
filed against the Premises or Building or any part thereof by reason of labor
or materials supplied or claimed to have been supplied to Tenant; and if any
such lien shall be filed, Tenant, within twenty (20) days after notice of
filing, shall cause it to be discharged of record.
14 Use of Premises
Tenant may use and occupy the Premises only for the express and limited
purposes stated in this Lease, and the Premises shall not be used or
occupied, in whole or in part, for any other purpose without the prior
written consent of Landlord. Tenant shall not commit or suffer any waste
upon the Premises or Building, or any nuisance or any other act which may
disturb the quiet enjoyment of any other tenant in the Building. Landlord
represents to Tenant that the Premises may be used for purposes specified in
this Lease.
15 Rules and Regulations
Tenant covenants and agrees that Tenant and Tenant Representatives shall
observe faithfully, and comply strictly with, such reasonable rules and
regulations as Landlord or Landlord Representatives may, after notice to
Tenant, from time to time adopt with respect to the Building, provided such
do not interfere with Tenant's Use of the Premises or otherwise increase
Tenant's costs under this Lease.
16 Governmental Regulations
Landlord warrants that Tenant's Use complies with all zoning laws and
regulations. This Landlord's warrant is a material inducement to Tenant
entering into this Lease and its failure to be true and Tenant not being able
to operate in accordance with the Use shall provide Tenant with the immediate
option to terminate this Lease, which includes the termination of the
Guaranty, and receive the return from Landlord of any and all payments made
upon execution of the Lease, including, among others, any Rent and Additional
Rent.
Tenant shall, in the use and occupancy of the Premises, comply with all
applicable laws, ordinances, notices and regulations of all governmental and
municipal authorities, and with the regulations of the insurers of the
Premises. Tenant shall keep in force at all times all licenses, consents and
permits necessary for the lawful conduct of Tenant's business at the
Premises. Nothing in the foregoing shall require the Tenant to perform any
work or make any
improvements or repairs which the Landlord is required to make pursuant to
other provisions of this Lease.
17 Signs
At Tenant's expense, Landlord shall permit Tenant's installation of interior
and exterior signs identifying Tenant and its business, such signs to be
reasonable in number, size and design, and such as approved by Landlord,
which approval shall not be unreasonably withheld. Landlord shall include
and display Tenant's business name at the Building's street entrance signs.
18 Landlord's Entry
Landlord and Landlord Representatives shall have the right to enter the
Premises at all reasonable times, with reasonable notice to inspect the same,
to exhibit same to prospective purchasers, tenants and mortgagees, and to
make any necessary repairs thereto in accordance with Section 6 of this
Lease. Landlord shall not be liable in any manner to Tenant by reason of
such entry or the performance of repair work in the Premises and the
obligations of Tenant hereunder shall not thereby be affected, except as may
be caused by any act, omission or negligence of Landlord and Landlord
Representatives; however, Landlord agrees (except in the case of Tenant's
default hereunder) that all repair work (except only emergency work or work
which must, in Landlord's judgment, be performed on an urgent basis) by
Landlord shall be performed in a reasonable manner at reasonable times, and
Landlord shall use its best efforts to be minimally intrusive with respect to
the Premises and Tenant's Use.
19 Indemnification
Except for the negligence of Landlord and Landlord Representatives, and to
the extent permitted by law, Tenant agrees to indemnify Landlord from and
against any and all losses, costs (including reasonable counsel fees),
liabilities, claims, suits, actions and causes of action, whether legal or
equitable ("Claims"), sustained or arising by reason of Tenant's possession
of the Premises including but not limited to the fault or neglect of Tenant
or of the failure by Tenant or Tenant Representatives to fulfill any duty
toward the public, or any person or persons whomsoever, which Tenant, by
reason of its occupancy or use of the Premises, may owe. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's
obligations under this Section 19.
Except for the negligence of Tenant and Tenant Representatives, and to the
extent permitted by law, Landlord agrees to indemnify Tenant from and against
all Claims sustained or arising by reason of Landlord's failure to comply
with its obligations and requirements under this Lease, including but not
limited to the fault or neglect of Landlord and Landlord Representatives or
of the failure by Landlord or Landlord Representatives to fulfill any duty
toward the public, or any person or persons whomsoever, which Landlord, by
reason of its ownership of the Building and leasing the Premises, may owe.
The furnishing of insurance required hereunder shall not be deemed to limit
Landlord's obligations under this Section 19.
20 Curing Tenant's Defaults
If Tenant shall default in performing any of its obligations hereunder,
Landlord may (but shall not be so obliged), in addition to Landlord's other
rights and remedies and without waiver of such default, cure such default on
behalf of Tenant, thereby entering and possessing the Premises if so deemed
by Landlord, provided that Landlord shall have first given Tenant notice of
such default and Tenant shall have failed within thirty (30) days following
said notice to cure or to diligently pursue the cure of said default (which
notice and opportunity to cure shall not be required in case of emergency).
Tenant, upon demand of Landlord, shall reimburse Landlord for all reasonable
costs (including reasonable counsel fees) incurred by Landlord with respect
to such default, and, if Landlord so elects, Landlord's reasonable efforts to
cure the same, which costs shall be deemed Additional Rent hereunder.
20A Curing Landlord's Defaults
If Landlord shall default in performing any of its obligations hereunder,
Tenant may (but shall not be so obligated), in addition to Tenant's other
rights and remedies and without waiver of such default, cure such default on
behalf of Landlord, provided that Tenant shall have first given Landlord
notice of such default and Landlord shall have failed within thirty (30) days
following said notice to cure or to diligently pursue the cure of said
default (which notice and opportunity to cure shall not be required in case
of emergency). Landlord, upon demand of Tenant, shall reimburse Tenant for
all reasonable costs (including reasonable counsel fees) incurred by Tenant
with respect to such default, and, if Tenant so elects, Tenant's reasonable
efforts to cure the same, which costs shall be deducted from any Rent due
hereunder if Landlord fails to reimburse Tenant within forty-five (45) days
of Tenant's written demand for reimbursement.
21 Default and Remedies - Landlord
(A) If (i) Tenant fails to pay any installment of Base Rent when due and
such failure continues for a period of thirty (30) days, (ii) Tenant
fails to pay any Additional Rent or other sums included as Rent herein
when due and such failure continues for a period of ten (10) days after
written notice from Landlord, (iii) Tenant vacates the Premises prior to
the end of the Term otherwise than as permitted under this Lease, (iv)
Tenant fails to observe or perform any of Tenant's obligations contained
herein, including but not limited to Tenant's obligations as set forth
in Paragraphs 11, 12 and 14 hereof, and such failure results in material
waste or destruction to the Premises and continues for more than thirty
(30) days after written notice from Landlord, (v) Tenant commits an act
of bankruptcy or commences any proceeding under any bankruptcy or
insolvency law not removed within sixty (60) days, (vi) a petition is
filed or any proceeding is commenced against Tenant under any bankruptcy
or insolvency law and is not dismissed within sixty (60) days, (vii)
Tenant is adjudicated a bankrupt, (viii) a receiver or other official is
appointed for Tenant or for a substantial part of Tenant's assets or for
Tenant's interest in this Lease, or (ix) any attachment or execution is
filed or levied against a substantial part of Tenant's assets or
Tenant's interests in this Lease or any of Tenant's property in the
Premises, then, in any such event, an "Event of Default" shall be deemed
to exist and Tenant shall be in default hereunder, and, at the option of
Landlord: (a) the balance of the Rent including Base Rent and all
Additional Rent and all other sums to which Landlord is
entitled hereunder, shall be deemed to be due and payable in arrears, as
if payable in advance hereunder; or (b) this Lease and the Term shall,
without waiver of Landlord's other rights and remedies, terminate
without any right of Tenant to save the forfeiture. Any acceleration of
the Rent by Landlord shall not constitute a waiver of any right or
remedy by Landlord, and if Tenant shall fail to pay the accelerated Rent
upon Landlord's demand, then Landlord may thereafter terminate this
Lease, as aforesaid. Immediately upon such termination by Landlord,
Landlord shall have the right to recover possession of the Premises with
or without legal process, breaking locks and replacing locks, and
removing Tenant's and any third party's property therefrom, and making
any disposition thereof as Landlord may deem commercially reasonable.
(B) Following such termination, Landlord shall have the unrestricted right
to lease the Premises or any part thereof to any person and pursuant to
any terms as Landlord may elect, but Landlord shall have no obligations
to rent the Premises so long as Landlord (or any related entity) has
other comparable vacant space available for leasing in the Building.
(C) Upon the occurrence of an Event of Default and the failure to cure such
Event of Default within a period of thirty (30) days from the date of
notice thereof by Landlord, or upon the termination of this Lease, the
Term hereof or any renewal term or extension thereof, it shall be lawful
for any Prothonotary or attorney of any court of record to appear for
Tenant as well as for all persons claiming by, through or under Tenant,
to confess judgment in ejectment against Tenant and all persons claiming
by, through or under Tenant for the recovery by Landlord of possession
of the Premises, without any liability on the part of the such attorney,
for which this Lease or a true and correct copy thereof shall be a
sufficient warrant, whereupon, if Landlord so desires, a writ of
possession may issue forthwith, without any prior writ whatsoever. If,
for any reason after such action has been commenced, the same shall be
determined and the possession of the Premises remain in or be restored
to Tenant, Landlord shall have the right upon any subsequent Event(s) of
Default, or upon the termination or expiration of this Lease or of
Tenant's right of possession as herein set forth, to confess judgment
from time to time in the manner and form herein set forth to recover
possession of the Premises. No such determination of this Lease, no
taking, nor recovering possession of the Premises shall deprive Landlord
of any remedies or action against Tenant for Rent or for damages due or
to become due for Tenant's breach of this Lease, nor shall the bringing
of any such action for Rent, or breach of covenant or condition nor the
resort to any other remedy herein provided for the recovery of Rent or
damages for such breach be construed as a waiver of the right to insist
upon the forfeiture and to obtain possession in the manner herein
provided.
In any action of ejectment, Landlord shall first cause to be filed in
such action an affidavit made by it or someone acting for it setting
forth the facts necessary to authorize the entry of judgment, of which
facts such affidavit shall be conclusive evidence, and, if a true copy
of this Lease be filed in such action, it shall not be necessary to file
the original as a warrant of attorney, any rule of court, custom or
practice to the contrary notwithstanding.
The right to enter judgment against Tenant by confession and to enforce
all of the other provisions of this Lease herein provided for may, at
the option of any assignee of this Lease, be exercised by any assignee
of Landlord's right, title and interest in this Lease in such assignee's
name any statute, rule of court custom or practice to the contrary
notwithstanding.
In the event of any suit, action or proceeding commenced in any court of
competent jurisdiction as a result of Landlord's enforcement of this
Paragraph 21(C), the prevailing party shall be entitled to receive from
the other party, in addition to any other relief granted, reasonable
attorneys' fees.
(D) No act or forbearance by Landlord shall be deemed a waiver or election
of any right or remedy by Landlord with respect to Tenant's obligations
hereunder, unless and to the extent that Landlord shall execute and
deliver to Tenant a written instrument to such effect, and any such
written waiver by Landlord shall not constitute a waiver or
relinquishment for the future of any obligation of Tenant. Landlord's
acceptance of any payment from Tenant (regardless of any endorsement on
any check or any writing accompanying such payment) may be applied by
Landlord to Tenant's obligations then due hereunder in any priority as
Landlord may elect, and such acceptance by Landlord shall not operate as
an accord and satisfaction or constitute a waiver of any right or remedy
of Landlord with regard to Tenant's obligations hereunder.
21A Default and Remedies - Tenant
(A) If (i) Landlord fails to arrange for all required utility services to
the Premises; (ii) Landlord fails to maintain the Building as required
herein; (iii) Landlord fails to observe or perform any of Landlord's
other obligations herein contained; (iv) Landlord interferes, whether
negligently or intentionally, with the business of Tenant and its
peaceable and quiet Use and enjoyment of the Premises, and such failure
or interference continues for more than thirty (30) days after written
notice from Tenant, then, in any such event, an "Event of Default" shall
be deemed to exist and Landlord shall be in default hereunder, and, at
the option of the Tenant, Tenant may: (a) terminate this Lease and
vacate the Premises immediately without any further liability under the
Lease, and take whatever other lawful remedies that may be available to
it upon such default; or (b) cure the default and be immediately
reimbursed by Landlord. If Landlord does not reimburse Tenant within
forty-five (45) days of Tenant's written demand for reimbursement,
Tenant may deduct reasonable costs and expenses incurred in curing such
default from any Rent due hereunder.
(B) No act or forbearance by Tenant shall be deemed a waiver or election of
any right or remedy by Tenant with respect to Landlord's obligations
hereunder, unless and to the extent that Tenant shall execute and
deliver to Landlord a written instrument to such effect, and any such
written waiver by Tenant shall not constitute a waiver or relinquishment
for the future of any obligation of Landlord. Tenant's acceptance of
any payment from Landlord (regardless of any endorsement on any check or
any writing
accompanying such payment) may be applied by Tenant to Landlord's
obligations then due hereunder in any priority as Tenant may elect, and
such acceptance by Tenant shall not operate as an accord and
satisfaction or constitute a waiver of any right or remedy of Tenant
with regard to Landlord's obligations hereunder.
22 Quiet Enjoyment
So long as Tenant is not in default under the covenants and agreements of
this Lease, Tenant's quiet and peaceful enjoyment of the Premises shall not
be disturbed or interfered with by Landlord or by any person claiming by,
through or under Landlord.
23 Assignment and Subletting
The Tenant shall not assign this Lease, or sublet the Premises, or any part
thereof, without Landlord's prior written consent which consent shall not be
unreasonably withheld or delayed. Landlord shall not be deemed to have
unreasonably withheld its consent if, in the reasonable judgment of Landlord,
the financial condition of the proposed transferee is such that it may not be
able to perform its obligations in connection with this Lease. Prior to any
sublease or assignment, Tenant shall first notify Landlord in writing of its
election to sublease all or a portion of the Premises or to assign this Lease
or any interest thereunder. At any time within fifteen (15) business days
after service of said notice, Landlord shall notify Tenant that it consents
or refuses to consent to the sublease or assignment. A failure by Landlord
to respond within such fifteen (15) business day period shall be deemed to be
consent.
Any assignment or subletting shall not release Tenant of its liability under
this Lease nor permit any subsequent assignment, subletting or other
prohibited act, unless specifically provided in such consent.
Notwithstanding the foregoing, no consent of Landlord is required for Tenant
to assign or to otherwise transfer (by operation of law or otherwise) this
Lease or any of its rights hereunder:
(a) to any person, corporation, partnership or other entity which
acquires all or substantially all of the business or assets of
Tenant or stock in Tenant;
(b) to any person, corporation, partnership or other entity which
controls, is controlled by or is under common control with Tenant;
or
(c) to any affiliate (within the meaning of such term set forth in Rule
501 of Regulation D under the Federal Securities Act of 1933) of
Tenant.
Tenant and Tenant's transferee or assignee shall provide notice of any
transfer or assignment described in (a), (b), or (c) hereof not less than
fifteen (15) days prior to the effective date of such transfer or assignment
unless prohibited by law and then, if so prohibited by law, within twenty
(20) days after the date of such transfer or assignment.
The use(s) for which the Premises may be assigned or sublet shall include any
lawful purpose(s) and shall be consistent with local zoning regulations.
24 Subordination
This Lease is and shall be subject and subordinate at all times to any lease
under which Landlord is in control of the Premises, to the rights of the
owners of the Building, and to all mortgages and other encumbrances now or
hereafter placed upon the Premises or the Building, without the necessity of
any further instrument or act on the part of Tenant to effectuate such
subordination. Tenant shall from time to time execute and deliver within ten
(10) days following the request of Landlord or Landlord's mortgagee, grantee
or lessor, recordable instruments evidencing such subordination and Tenant's
agreement to attorn to the holder of such prior right. Notwithstanding the
foregoing, any mortgagee may at any time subordinate its mortgage to this
Lease, without Tenant's consent, by notice in writing to Tenant, whereupon
this Lease shall be deemed prior to such mortgage without regard to their
respective dates.
25 Tenant's Certificate
Tenant shall from time to time, within ten (10) days after Landlord's
request, execute and deliver to Landlord a recordable written instrument(s),
in a form reasonably satisfactory to Landlord, certifying that this Lease is
unmodified and in full effect (or if there have been modifications, that it
is in effect as modified), and the dates to which rental charges have been
prepaid by Tenant, if any, and whether or not Landlord is in default of any
of its obligations hereunder. Tenant agrees that such statement may be
relied upon by any mortgagee, purchaser or assignee of Landlord's interest in
this Lease, Building, or Land.
26 Acceptance; Surrender
By entry and possession of the Premises, Tenant thereby acknowledges that
Tenant has examined the Premises and accepts the same as being in the
condition called for by this Lease. Tenant, shall, at the end of the Term,
promptly surrender the Premises in good order and condition as called for by
this Lease. Tenant, shall, at the end of the Term, promptly surrender the
Premises in good order and condition and in conformity with the applicable
provisions of this Lease, excepting only reasonable wear and tear, damage by
fire or other insured casualty.
27 Holding Over
This Lease shall expire absolutely and without notice on the last day of the
Term, provided that if Tenant, with the prior written consent of Landlord,
retains possession of the Premises or any part thereof after the termination
of this Lease by expiration of the Term or otherwise, a month to month
tenancy shall be deemed to exist and Tenant shall continue to pay the Base
Rent and Additional Rent due hereunder. If such holding over exists without
Landlord's prior written consent, Tenant shall pay Landlord, as partial
compensation for such unlawful retention, an amount calculated on a per diem
basis for each day of such continued unlawful retention, equal to twice the
Base Rent for the time Tenant remains in possession. Such payments for
unlawful retention shall not limit any rights or remedies of Landlord
resulting by reason of the wrongful holding over by Tenant or create any
right in Tenant to continue in possession of the Premises.
28 Notices
All notices, requests and consents herein required or permitted from either
party to the other shall be in writing and shall be deemed given when
deposited with the United States Postal Service, registered or certified
mail, return receipt requested, postage prepaid, addressed to Landlord at its
address aforesaid, or by facsimile or overnight delivery service with proof
of delivery or, as the case may be, addressed to Tenant at its address
aforesaid, or to such other address as the party to receive same may
designate by notice to the other.
29 Broker
Landlord and Coldwell Banker Real Estate Corporation ("Coldwell Banker") are
parties to a listing agreement whereby Coldwell Banker will be due a
commission upon the Commencement Date of this Lease. Landlord shall be
solely responsible for the payment of such commission to Coldwell Banker.
Tenant represents and warrants that there are no brokerage commissions or
finder's fees due and payable to any realtor representing Tenant in
connection with the execution of this Lease.
30 Successors and Assigns
The word "Landlord" is used herein to include the Landlord named above and
any subsequent person who succeeds to the rights of Landlord herein, each of
whom shall have the same rights and remedies as he would have had had he
originally signed this Lease as Landlord, but neither Landlord nor any such
person shall have any liability hereunder after he ceases to hold a fee or
leasehold interest in the Premises, except for obligations which may have
theretofore accrued. The word "Tenant" is used herein to include the party
named above as Tenant and its successors and assigns, each of whom shall be
under the same obligations, liabilities and disabilities and have such
rights, privileges and powers as he would have possessed had he originally
signed this Lease as Tenant; provided, the term "Tenant" does not include any
officer, director, shareholder or affiliate of Tenant, except as provided in
Section 32 hereof.
31 Renewal Periods
This Lease shall be renewable for two consecutive periods of five (5) years
each under the terms and conditions of this Lease, which Renewal Periods
shall be automatic provided that:
(a) Tenant is not in default hereunder;
(b) Tenant has not given notice of its intent to terminate the Lease at
least one hundred eighty (180) days prior to the expiration of the
current Term; and
(c) The Base Rent for any Renewal Period will commence on the first day
of the month immediately following the expiration of the Term or
the first Renewal Period, as the case may be, and each year of the
Renewal Periods will be at the annual rental for the immediately
preceding year plus an additional three percent (3%) per year.
32 Guaranty
Certain obligations of Tenant under this Lease are guaranteed by Dialysis
Corporation of America, a member of Tenant, in accordance with the Guaranty
attached hereto and hereby made a part of this Lease.
33 Miscellaneous
The Lease constitutes the entire agreement between the parties hereto with
respect to the Premises and there are no other agreements or understanding.
This Lease shall not be modified except by written instrument executed by
both parties. This Lease may be executed in several counterparts and each
such counterpart shall be deemed an original, and all counterparts shall
constitute a single original Lease. The captions used herein are for
convenience only and are not part of the Lease. All provisions of this Lease
are distinct and severable and if any clause shall be held to be invalid,
illegal or against public policy, the validity or the legality of the
remainder of this Lease shall not be affected thereby. This Lease shall be
construed in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this Lease, under seal,
as of the day and year first above written.
FISHER SCHELER, LLC
/s/ Albert Riviezzo /s/ David W. Fisher
- ---------------------------------- By: ---------------------------------
Witness
DCA OF POTTSTOWN, LLC
/s/ Stephen W. Everett
- ---------------------------------- BY: ----------------------------------
Witness STEPHEN W. EVERETT, President
EXHIBIT A
Guaranty
--------
WHEREAS, FISHER SCHELER, LLC ("Landlord") and DCA OF POTTSTOWN, LLC
("Tenant") have entered into a certain Lease Agreement dated on or about the
date hereof, covering certain premises (the "Premises") in Pottstown,
Pennsylvania (the "Lease"); and
WHEREAS, the Landlord requires as a condition to its execution of the
Lease that the undersigned become a surety to Landlord for Rent obligations
of Tenant under the Lease; and
WHEREAS, the undersigned is a member of Tenant and owns a majority of
the ownerhsip units of Tenant and as such is desirous that Landlord enter
into the Lease with Tenant.
NOW THEREFORE, in consideration of the execution of the Lease by
Landlord and other good and valuable consideration and intending to be
legally bound hereby, the undersigned hereby unconditionally guarantees to
Landlord, its successors and assigns in accordance with the terms and
conditions and only to the limits in Section 1 set forth below, the full and
prompt payment by Tenant of the Base Rent (as that term is defined in the
Lease), but exclusive of Additional Rent and reimbursements and charges for
any other defaults, breaches or other failures of Tenant to perform under the
Lease). The undersigned further agrees as follows:
1. Upon the execution of the Lease by Landlord and Tenant, the
undersigned, by the execution of this Guaranty, guarantees the payment of the
first Four Hundred Thousand Dollars ($400,000) ("Guaranty Amount") in Base
Rent (as that term is defined in the Lease). The Guaranty Amount shall be
reduced by the amount of Base Rent paid by Tenant monthly until such time as
the Guaranty Amount is reduced to Two Hundred Thousand Dollars ($200,000) as
a result of the application of the monthly Base Rent payments, at which time
the Guaranty Amount will remain at Two Hundred Thousand Dollars ($200,000).
This Guaranty will expire upon the later of the receipt by Landlord of Four
Hundred Thousand Dollars ($400,000) in Base Rent or the expiration of the
sixtieth (60th) month of the Term (as that term is defined in the Lease).
Notwithstanding the foregoing, the Guaranty Amount will be reduced by any
amount less than Two Hundred Eight Thousand Eight Hundred Ten Dollars
($208,810) paid by Landlord in connection with the Tenant improvements as
more fully described in Section 3(B) of the Lease.
2. Landlord shall have the right from time to time, and at any time in
its sole discretion, without notice to or consent from the undersigned, or
without affecting, impairing or discharging, in whole or in part, the
liabilities or the obligations of the undersigned hereunder, to modify,
change, extend, alter, amend, or supplement in any respect whatever, the
Lease, or any agreement or transaction between Landlord and Tenant or between
Landlord and any other party liable for the liabilities, or any portion or
provision thereof; to grant extension of time and other indulgences of any
kind to Tenant; to compromise, release, substitute, exercise, enforce or fail
to refuse to exercise or enforce any claims, rights, or remedies of any kind
which Landlord may have at any time against Tenant or any other party liable
for the liabilities, or any thereof, or with respect to any security of any
kind held by Landlord at any time under any agreement or otherwise.
3. The undersigned waives: (a) all notice, including but not limited to
(i) notice of acceptance of this Guaranty; (ii) notice of presentment, demand
for payment, or protest of any of the liabilities, or the obligation of any
person, firm, or corporation held by Landlord as collateral security; (b)
trial by jury and the right thereto in any proceeding of any kind, whether
arising on or out of, under or by reason of this Guaranty, or any other
agreement or transaction between the undersigned, Landlord and/or Tenant; and
(c) all notices of the financial condition or of any adverse or other change
in the financial condition of Tenant.
4. Landlord may, without notice, assign this Guaranty in whole or in
part to Landlord's successor in interest under the Lease, and no assignment
of this Guaranty shall operate to extinguish or diminish the liability of the
undersigned hereunder. The assignment of the Lease by Tenant to an entity
not affiliated with the undersigned shall automatically terminate this
Guaranty and, thereafter, the undersigned shall have no further liability
hereunder. Notwithstanding the foregoing, this Guaranty shall not terminate
due to a transfer or assignment of the Lease pursuant to Section 23 of the
Lease, except as may be consented to by Landlord.
5. The liability of the undersigned under this Guaranty shall be primary
under any right of action for Rent which shall accrue to Landlord under the
Lease and Landlord may, at its option, proceed against the undersigned
without having to commence any action, or have obtained any judgment against
Tenant.
6. The obligations of the undersigned hereunder shall be immediately due
and payable by the undersigned immediately upon the occurrence of a default
in the payment of Base Rent under the Lease which continues beyond the
expiration of the applicable notice and/or grace period, if any, under the
Lease.
7. The obligations of the undersigned hereunder shall not be affected,
impaired or discharged, in whole or in part, by reason of: (a) the entry of
an order for relief pursuant to the United States Bankruptcy Code by or
against Tenant; or (b) the proposal of or the consummation of a plan of
reorganization concerning Tenant.
8. The waiver of any right by Landlord or its failure to exercise
promptly any right shall not be construed as the waiver of any other right
including the right to exercise the same at any time thereafter. No waiver
of modification of any of the terms or conditions of this Guaranty shall be
binding against Landlord unless such waiver or modification is in a writing
signed by Landlord.
9. The provisions of the Guaranty shall bind all of the respective
successors and assigns of the undersigned and shall inure to the benefit of
Landlord, its successors and assigns.
10. All rights and remedies of Landlord are cumulative and not
alternative. This Guaranty is, and shall be deemed to be, a contract entered
into under and pursuant to the laws of the Commonwealth of Pennsylvania and
shall be in all respects governed, construed, applied and enforced in
accordance with the laws of said Commonwealth.
11. The undersigned represents that at the time of the execution and
delivery of this Guaranty nothing exists to impair the effectiveness of the
obligations of the undersigned to Landlord hereunder, or the immediate taking
effect of this Guaranty between the undersigned and Landlord with respect to
the undersigned's Guaranty, which is limited to the repayment of the Base
Rent as provided in the Preamble and the first paragraph of this Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed and sealed this day of , 2003.
Dialysis Corporation of America
/s/ Stephen W. Everett
By: ---------------------------------
Name: Stephen W. Everett
Title: Chief Executive Officer
and President