Exhibit 10.3
GUARANTY
This Guaranty
(the “Guaranty” ), dated and effective as of
December 31, 2008, and is made and entered into by ST. THOMAS MORE,
LLC, a Nevada limited liability company (“ Guarantor
”) with reference to the following facts:
R E C I T A
L S
A. St.
Thomas More Dialysis Center, LLC, a Maryland limited liability
company ( “Dialysis” ) and DCA of Hyattsville,
LLC, a Maryland limited liability company (
“Purchaser” ) are parties to that certain Asset
Purchase Agreement, dated as of December 31, 2008 (the
“Purchase Agreement” ).
B. In
the event Closing (as defined in the Purchase Agreement) occurs
under the Purchase Agreement, Guarantor has agreed to execute this
Guaranty in favor of Purchaser to guaranty the performance by
Dialysis of the General Covenants (as defined in the Purchase
Agreement) for a period of eighteen (18) months following Closing
Date (as defined in the Purchase Agreement) under the Purchase
Agreement (the “Survival Period” ).
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Guarantor agrees as
follows:
A G R E E M
E N T
1.
Recitals . Each and all of the foregoing
recitals of background facts are incorporated herein by this
reference as though set forth herein verbatim.
2.
Definition of Terms Used Herein . The
capitalized terms in this Guaranty shall have the meanings set
forth in the Purchase Agreement unless otherwise expressly
indicated herein.
3.
Guaranty .
3.1 Guarantor
guarantees the performance by Dialysis of the General Covenants of
Dialysis under the Purchase Agreement during the Survival
Period. This Guaranty is an absolute guaranty of payment
and performance and not of collection.
3.2 If
Purchaser determines that Dialysis has defaulted on, or breached or
violated any of its General Covenants of Dialysis under the
Purchase Agreement and such default is not cured within ten (10)
business days following written notice from Purchaser to Dialysis
and Guarantor, then Purchaser shall have the right to pursue an
action against Guarantor for the actual damages (excluding
consequential, speculative and punitive damages) incurred by
Purchaser directly related to such breach or default of by Dialysis
of its General Covenants. Any action that is not brought
by Purchaser against Guarantor prior to the end of the Survival
Period shall thereafter be barred; provided
