ASSIGNMENT AND ASSUMPTION OF LEASE AND RELEASE
This Assignment and Assumption of Lease and Release ("Assignment") is
executed this 31st day of October, 1997 by and among Dialysis Corporation
of America ("Assignor"), Renal Care Group of the Southeast, Inc.
("Assignee"), Renal Care Group, Inc. ("RCG"), the parent of Assignee,
and X. Xxxxx Medical Inc. ("Lessor").
WHEREAS, Assignor has entered into a Master Lease for certain leased
equipment dated November 22, 1996 ("Lease") and certain of such leased
equipment as set forth in Exhibit A hereto ("Leased Equipment") allocated
to Assignor's subsidiary, Dialysis Services of Florida, Inc., - Fort
Xxxxxx Beach ("DSF"); and
WHEREAS, Assignor and DSF and certain other subsidiaries of Assignor
are entering into an Asset Purchase Agreement with Assignee and RCG whereby
Assignor is selling a substantial portion of the assets of DSF to Assignee,
including assigning, conveying and transferring the Leased Equipment to
Assignee, and pursuant to Sections 10 and 15 of the Lease, Assignor may
only part with possession or control of the Leased Equipment or otherwise
dispose of any interest in the Lease and assign its portion of the Lease
and its interest in the Leased Equipment (Assignor's disposition of
possession and control of the Leased Equipment, its disposition of its
interest in the Lease as it relates to DSF and the Leased Equipment, in-
cluding the option to purchase as provided in Section 18 and Rider 1 of
the Lease as it relates to the Leased Equipment will hereinafter be re-
ferred to as the "DSF Lease Interest") with prior written consent of the
Lessor; and
WHEREAS, Assignee is desirous of accepting this Assignment and being
bound by the terms and provisions of the DSF Lease Interest; and
WHEREAS, Assignor is desirous of being completely released from any and
all rights, obligations and responsibilities relative to the DSF Lease
Interest upon this Assignment, and Assignee wishes to assume and agrees to
perform all obligations arising under and out of the DSF Lease Interest;
NOW, THEREFOR, for and in consideration of the mutual covenants set
forth below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor, Assignee, Lessor
and RCG, intending to be legally bound hereby, agree as follows:
1. The preamble is incorporated herein as if set forth in full.
2. Assignor hereby assigns and transfers to Assignee as part of the
Acquired Assets as defined in the Asset Purchase Agreement, irrevocably
and unconditionally, all of the Assignor's right, title and interest and
obligations under, in and to the DSF Lease Interest.
3. Assignee hereby accepts the foregoing assignment and transfer of
the DSF Lease Interest and agrees to be bound by and faithfully observe
and perform all of the conditions, stipulations, agreements, terms and
obligations ("Obligations") of and under the DCA Lease Interest as of the
Closing Date of the Asset Purchase Agreement, Assignor to be responsible
for the period prior thereto. Assignee and RCG shall indemnify and save
Assignor and its successors and assigns, officers and directors, harmless
from any and all claims, documents, actions, causes of action, suits,
proceedings, rents, additional rents, charges, leaseholds, costs and
expenses of any nature whatsoever, including attorney's fees ("Claims"),
which relate to and arise under the DSF Lease Interest on or after the
Closing Date of the Asset Purchase Agreement but not with respect to any
Claims relating to and arising under the DSF Lease Interest prior to the
Closing Date of the Asset Purchase Agreement.
4. RCG hereby acknowledges the assignment and transfer of the DSF
Lease Interest to Assignee and agrees to guarantee the full, faithful and
timely performance by Assignee with respect to the DSF Lease Interest and
all of the Obligations of the Assignee contained in the DSF Lease Interest,
which guaranty is an absolute, unconditional, irrevocable, permanent and
continuing guaranty of performance ("Guaranty").
5. Lessor, in consideration of the foregoing, hereby consents to the
assignment and transfer of the DSF Lease Interest to Assignee, the
Assignee's assumption of all Obligations under the DSF Lease Interest,
and the Guaranty of the DSF Lease Interest by RCG, and hereby relinquishes
and releases Assignor from any further Obligations and performance under
and relating to the DSF Lease Interest as of the Closing Date of the Asset
Purchase Agreement.
6. All taxes and other governmental charges and fees, including, with-
out limitations, any and all transfer taxes, stamp taxes, sales taxes, and
recording fees, relating to the transaction evidenced by this Assignment
shall be paid by Assignee.
7. This Assignment shall be binding upon the successors and assigns of
the parties. The parties shall execute and deliver such further and addi-
tional instruments, agreements, and other documents as may be necessary to
evidence or carry out the provisions of this Assignment.
8. All notices or other documents under this Assignment shall be in
writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the parties at their last known address.
9. No delay or failure by either party to exercise any right under
this Assignment, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
10. This Assignment shall be construed in accordance with and governed
by the laws of the State of Florida.
11. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed by their duly authorized corporate officers as of the date first
written above.
DIALYSIS CORPORATION OF AMERICA
ATTEST: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxx
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XXXXXXXX X. XXXXX, XXXX XXXXXXXXX, President
Counsel and Secretary
RENAL CARE GROUP OF THE
SOUTHEAST, INC.
ATTEST: By: /s/ Xxxxxx Xxxxx
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RENAL CARE GROUP, INC.
ATTEST: By: /s/ Xxxxxx Xxxxx
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X. XXXXX MEDICAL, INC.
ATTEST: By: /s/ Xxx Xxxxx
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