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Exhibit 10.8
Indexing Instructions: The NE 1/4 of Sec. 14, T5N, R1W, ▇▇▇▇▇ Co., Miss.
STATE OF MISSISSIPPI
COUNTY OF ▇▇▇▇▇
LEASE CONTRACT AND AGREEMENT
THIS LEASE is made and entered into on December 29, 1995, by and
between JCD PARTNERSHIP, a Mississippi Partnership, (hereafter "Lessor" or
"Landlord"), and RENEX DIALYSIS FACILITIES, INC., a Mississippi corporation
(hereafter "Lessee" or "Tenant").
FOR AND IN CONSIDERATION OF the rental payments herein agreed
upon and the mutual covenants and promises herein expressed, and other valuable
consideration, the receipt of which is hereby acknowledged, the parties do
hereby enter into the following Lease Agreement whereby Lessor leases unto
Lessee, and Lessee leases from Lessor the real property described in Exhibit "A"
attached hereto and made a part hereof by reference, together with any building
located thereon (hereafter "Leased Property").
I. TERM
The term of this Lease (hereinafter "primary term") shall be for
a period of ten (10) years, commencing upon the date of the Certificate of
Occupancy of a 5000 square foot building to be constructed by Lessor on the
Leased Property using up to $175,000.00 in funds provided by Lessee for tenant
finishes with adequate parking for Lessee's personnel and patients and ending
ten (10) years thereafter. Lessor agrees that such construction, including
leasehold improvements, shall be substantially completed on or before a date to
be agreed upon between the parties, but in no event later than December 31,
1996. Lessor represents and warrants that the building shall be constructed in
accordance with plans and specifications as approved by Lessee and will be free
of defects, suitable for the purposes intended, built in compliance with
applicable building codes and all other statutes, regulations, ordinances and
rules pertaining to the Leased Property. The building will include all utility
hookups, HVAC unit and foundation plumbing. The actual construction of the
tenant fixtures shall be set forth in a separate agreement with a licensed
contractor. Lessor agrees to subordinate its lien to Lessee's institutional
financing lender upon the condition of Lessee's parent corporation guarantee of
Lessee's obligation under this Lease. The term "tenant finishes" as referred to
herein shall include all interior walls, finishes on exterior walls, ceilings,
insulator, paint, wiring, breakers, HVAC ducts, plumbing, pipes, drains, and
associated fixtures, and case work.
II. RENTAL
Lessee shall pay unto Lessor as rent during the term hereof the
sum of Eleven and No/100 Dollars ($11.00) per square foot of rentable area,
being approximately 5,000 square feet, or Fifty-Five Thousand and no/100 Dollars
($55,000.00) annual rent, subject to adjustment herein, payable in monthly
installments of $4,583.33 per month commencing on the date of the Certificate of
Occupancy and on the same day of each month thereafter and continuing throughout
the term of this Lease and until the expiration hereof. Upon completion of the
tenant finishes, Lessee shall have the right to measure the rentable area and
the actual annual rent shall be calculated on the actual square footage of the
building. All such rental payments shall be made payable at the office
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of Lessor on the aforesaid day of each month or at such other place as Lessor
may designate in writing, without notice or demand from Lessee.
It is further agreed that, notwithstanding anything contained
herein to the contrary, the property leased is leased for a total rental for the
ten-year period of $550,000.00, subject to adjustment above, payable at the time
of the completion of the construction of the building and the provisions herein
contained for the payment of such rent in installments are for the convenience
of the Tenant and that upon default in payment of such rent in installments as
herein allowed, the whole of the rent provided for and then remaining unpaid
shall at once become due and payable without notice or demand, at the option of
Lessor.
III. CONDITIONS
A. Tenant's Acceptance of Property. At the
commencement of the term, Tenant shall have an opportunity to inspect the
building, improvements, equipment, sidewalks, parking area, etc., and
acknowledge inspection of the same and advise Lessor of any visible defects. In
no event shall Landlord have any responsibility for tenant finishes.
B. Assignment of Lease. Tenant-shall not assign,
mortgage, or encumber this Lease, nor sublet or permit the Leased Property or
any part thereof to be used by others without the prior written consent of
Landlord in each instance. If this Lease is assigned or if the Leased Property
or any part thereof is sublet without the prior written consent of Landlord or
occupied by anyone other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, subtenant, or occupant and apply the net amount
collected to the rent herein reserved. No such assignment, subletting,
occupancy, or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant, or occupant as a tenant, or a release of
Tenant from the further performance by Tenant of the covenants in this Lease.
The consent by Landlord to an assignment or subletting shall not be construed to
relieve Tenant from obtaining the consent in writing of Landlord to any further
assignment or subletting.
C. Use and Occupancy Restrictions. Tenant hereby
agrees to restrict his use and occupancy of the premises herein leased to those
activities normally associated with a dialysis clinic and hereby covenants not
to use said premises for any unlawful or other purpose or make use of said
premises in such way as would cause additional rates of any insurance. Lessee
shall have access to the building at all times.
▇. ▇▇▇▇▇▇'▇ Right of Inspection. At all times
during Lessee's business hours, Lessor shall have the right to enter the Leased
Property for the purpose of inspecting the Leased Property, provided that such
inspection will be performed in a manner to minimize interference with Lessee's
business operations.
E. Property Taxes. It is agreed and understood by
the parties that Lessee shall pay all personal property taxes assessed against
its property on the leased premises and its pro rata share of real property
taxes resulting from tenant finishes. Lessor shall otherwise pay the real
property taxes assessed on the leased premises.
F. Maintenance. Lessor shall maintain the exterior
of the building hereby leased, including the exterior walls and roof. Lessee
shall maintain the leasehold improvements and the interior of the Leased
Property, including glass and windows, and shall be responsible for
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all other maintenance including, without limitation, upkeep and maintenance on
all appliances, plumbing, air conditioning, and heating units and hot water
heaters. In addition, Lessor and Lessee shall share equally in the costs to
maintain the lawn and landscape.
G. Utilities. Lessee agrees to pay all utilities
including, without limitation, all water, gas, telephone, electricity,
janitorial and hazardous waste services associated with Tenant's use of said
premises during the term of this Lease.
H. Improvements. Except for tenant finishes, no
material alteration, addition, or improvement to the Leased Property shall be
made by Tenant without the written consent of the Landlord, which shall not be
unnecessarily withheld. Any alteration, addition, or improvement made to the
Leased Property following the issuance of the Certificate of Occupancy shall be
made at the sole expense of Tenant and shall become a part of the Leased
Property to which all right, title, and interest shall belong to Lessor unless
same can be removed with only minimal harm to the Leased Property.
I. Public Liability and Property Damages Insurance.
Lessee shall, at its own expense, maintain public liability and property damage
insurance with a single combined liability limit of not less than One Million
and No/100 Dollars ($1,000,000.00), insuring against all liability of Lessee and
its authorized representatives arising out of or in connection with the Lessee's
lease, use and/or occupancy of the Leased Property, building, and all
improvements. Lessor shall be named as an additional insured, and all policies
shall contain cross-liability endorsements. All public liability and property
damage insurance acquired under this Lease shall:
1. be issued by and binding upon a solvent
insurance or insurance companies qualified and admitted to do
business in Mississippi;
2. be a primary policy or a combination of a
primary policy and an excess liability policy; and
3. contain an endorsement requiring thirty (30)
days written notice from the insurance company to Lessor and
Lessee before cancellation of the policy shall be effective.
A certificate of each policy shall be deposited with Lessor on or before the
commencement date of this Lease and, upon renewal or cancellation thereof, a new
certificate shall be deposited with Lessor not less than twenty (20) days before
the expiration or termination of the policy then in effect.
J. Fire and Extended Coverage Insurance. Lessor
shall maintain, at its expense, a standard fire and extended coverage insurance
policy issued by and binding upon a solvent insurance company licensed,
qualified, and admitted to do business in the State of Mississippi, insuring on
behalf of Lessor the building and improvements to the extent of their full
replacement value. Lessor shall not insure, nor have any duty or obligation to
insure, any furniture, equipment, machinery, trade fixtures, goods, or other
personal property that Lessee may bring or maintain upon the Leased Property nor
shall Lessor be liable for damage or destruction to any of such property from
any cause. Lessee shall maintain fire and extended coverage insurance on all of
Lessee's tenant finishes, furniture, equipment, machinery, trade fixtures,
goods, supplies, or other personal property.
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K. Surrender in Same Good Order and Condition. Tenant's Option to
Remove His Property. Landlord's Right to Unremoved Property. Tenant shall vacate
the Leased Property in the good order and repair in which such property was at
the time of issuance of the Certificate of Occupancy, ordinary wear and tear and
casualties by accidental fire not occurring through the Tenant's negligence
alone excepted, and shall remove all its personal property therefrom so that the
Landlord can repossess the Leased Property not later than noon on the day upon
which this Lease or any extension thereof expires, whether upon notice,
holdover, or otherwise. Landlord shall have the same rights to enforce this
covenant by ejectment and for damages or otherwise as for the breach of any
other condition or covenant of this Lease. Tenant may at any time prior to or
upon the termination of this Lease or any renewal or extension thereof remove
from the Leased Property all materials, equipment, and property of every other
sort or nature owned and installed by the Tenant thereon, provided that such
property is removed without substantial injury to the Leased Property. No injury
shall be considered substantial if it is promptly corrected by restoration to
the condition prior to the installation of such property, if so requested by
Landlord. Any such property not so removed shall become the property of
Landlord.
L. Prohibition of Signs. Consent of Landlord Not to be
Unreasonably Withheld. Except as hereinafter provided, Tenant shall not, without
Landlord's consent, place or erect any signs of any nature on any part of the
Leased Property, the sidewalk adjoining the Leased Property, or on any part of
Landlord's property adjacent to the Leased Property. Landlord will not
unreasonably withhold its consent to the placement of a sign of reasonable size
bearing Tenant's trade name, but the location, colors, materials, styles, and
size of such sign shall be subject to Landlord's absolute right of approval and
the limitations and restrictions of state and local ordinances applicable
thereto.
M. Landlord to Repair. Rent Abatement During Repair. Where the
Leased Property is damaged by fire or other casualty without the fault of
Tenant, Landlord shall repair or replace the damage with reasonable dispatch, if
Lessor deems reasonable, and if the damage has rendered the Leased Property
untenantable, there shall be an apportionment of the rent until the damage to
Landlord's property has been repaired. In determining what constitutes
reasonable dispatch, consideration shall be given to delays caused by strikes,
adjustment of insurance, and other causes beyond Landlord's control. In no event
shall Landlord have any responsibility for the repair or replacement of tenant
finishes.
N. Right of Entry Upon Abandonment. Landlord's Rights to Relet.
Liability of Tenant. If at any time during the lease term, the Leased Property
or any part thereof shall be abandoned by Tenant, Landlord may, at its option,
enter into the Leased Property by force or otherwise without being liable for
any prosecution therefor, and without becoming liable to Tenant for damages or
for any payment of any kind whatsoever, and may, in its controlled discretion,
as agent of Tenant relet the Leased Property, or any part thereof, for the whole
or any part of the then unexpired term and, for the purposes of such reletting,
Landlord may make alterations and modifications of the Leased Property, and may
receive and collect all rent payable by virtue of such reletting and, if
Landlord shall, because of nonpayment of rent or other breach of condition or
covenant or agreement, re-enter and repossess the Leased Property pursuant to
the conditional limitations contained herein, by summary proceedings, force, or
otherwise, Landlord may, at its option, hold Tenant liable for the difference
between the rent and other charges that would have been payable hereunder during
the residue of the lease term, if this Lease had continued in force, and the net
rent for such period realized by Landlord by means of reletting to any other
tenant(s), on such terms and conditions as may, in the uncontrolled discretion
of Landlord be provided, and
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Tenant shall pay monthly in advance, at such periods as the rent hereunder would
have fallen due if this Lease continued, the differential between the original
amount of each monthly payment, as herein provided plus such sums, if any, due
from Tenant as additional and augmented rent, and the net proceeds of reletting
after deducting expenses of every nature and description incurred by Landlord,
including, without limitation, commissions and the cost of all alterations and
modifications to the Leased Property made in reletting same.
O. Reimbursement of Litigation Expenses. Expenses Deemed
Landlord's Lien. In case either party shall, without fault on its part, be made
a party to any litigation commenced by the other, the prevailing party shall
recover all costs and reasonable attorney's fees incurred by it in enforcing the
covenants, terms, and provisions of this Lease, or in terminating this Lease by
reason of default; and all such costs and reasonable attorney's fees, if paid by
Landlord and Landlord is the prevailing party, and payment of all monies
provided in this Lease to be made by Lessee, shall be, and they are, hereby
declared to be a Landlord's lien upon any building and improvement and Lessee's
interest in any personal property placed upon the premises at any time during
the term of this Lease and upon the leasehold interest hereby created, and upon
the rent of any building and improvement situated upon the premises at any time
during the term of this Lease.
P. Landlord's Right to Cause Expiration Upon Listed Defaults.
Recovery of Rent for Balance of Term Less Reasonable Rental Value.
1. Landlord may give Tenant fifteen (15) days
notice of intention to terminate this Lease in any of the
following circumstances:
a. If Tenant shall be in default in the performance
of any covenant of this Lease and if such default is not cured
within fifteen (15) days after written notice thereof given by
Landlord to Tenant or, if such default shall be of such nature
that it cannot be cured completely within such fifteen-day
period or shall not thereafter proceed with reasonable diligence
and in good faith to remedy such default.
b. If Tenant shall be adjudicated as bankrupt, make a
general assignment for the benefit of creditors, or take the
benefit of any insolvency act, or if a permanent receiver or
trustee in bankruptcy shall be appointed for Tenant's property
and such appointment is not vacated within ninety (90) days. For
these purposes, "Tenant" shall mean the tenant then in
possession of the Leased Property.
c. If the Leased Property appears to have permanently
become vacant or deserted for a period in excess of thirty
(30) days.
d. If this Lease shall be assigned or the Leased
Property sublet other than in accordance with the terms of
this Lease.
e. If Tenant shall be in default in the payment of any
rental sums or other monetary obligations incurred hereunder.
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2. If Landlord shall give the fifteen-day notice of
termination provided in subparagraph (a) of this paragraph P,
then at the expiration of such period, this Lease shall terminate
as completely as if that were the date herein definitely fixed
for the expiration of the term of this Lease, and Tenant shall
then surrender the Leased Property to Landlord. If this Lease
shall so terminate, it shall be lawful for Landlord, at its
option and without formal demand or notice of any kind, to remove
Tenant therefrom without being liable for any damages therefor.
Upon termination of this Lease, as herein provided, Landlord
shall have the right, at its election, to terminate any sublease
then in effect, without the consent of the sublessee concerned.
3. Tenant shall remain liable for all its obligations
under this Lease, despite the Landlord's re-entry, and Landlord
may relet or use the Leased Property as agent for Tenant, if
Landlord so elects. Tenants waives any legal requirement for
notice of intention to re-enter and any right of redemption.
4. Nothing in this Article shall be deemed to require
Landlord to give Tenant any notice, other than such minimum
notice as may be required by statute, prior to the commencement
of an unlawful detainer action for nonpayment of any basic rent
or additional rent, it being intended that the 15-day notice
provided hereunder is only for the purpose of creating a
conditional limitation hereunder pursuant to which this Lease
shall terminate.
5. Time is of the essence of this Lease with respect to
the performance by Tenant of its obligation hereunder.
Q. No Waiver of Landlord's Rights Through Failure to Seek Redress
or Receipt of Rent. The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this Lease
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and affect of an original violation. The
receipt of rent by Landlord with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach.
R. Indemnification. Lessee shall release, indemnify, save and
hold harmless Lessor, together with all of its agents, successors, assigns and
attorneys, from and against all claims, actions, damages, liability and expenses
incurred in connection with loss of life, personal injury and/or damage to the
property arising from or out of any occurrence in, upon or at the Leased
Property, or the occupancy or use by Lessee of the Leased Property or any part
thereof, or occasioned wholly or in part by any act or omission of Lessee, its
agents, successors, assigns or invitees. Lessor shall release, indemnify, save
and hold harmless Lessee, together with all of its agents, successors, assigns
and attorneys, from and against all claims, actions, damages, liability and
expenses incurred in connection with loss of life, personal injury and/or damage
to the Leased Property arising from or out of any occurrence occasioned wholly
or in part by any act or omission of Lessor, its agents, successors, assigns or
invitees.
S. Notice by Registered or Certified Mail. Any notice under this
Lease must be in writing and must be sent by registered or certified mail to the
last address of the party to whom the notice is to be given, as designated by
such party in writing. Landlord hereby designates its address as ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Tenant hereby designates its address as ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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T. Lease Binding Upon Heirs, Executors, Administrators,
Successors, and Assigns of Landlord and Tenant. The covenants, terms,
conditions, provisions, and undertakings in this Lease or in any renewals
thereof shall extend to and be binding upon the heirs, executors,
administrators, successors, and assigns of the respective parties hereto, as if
they were in every case named and expressed, and shall be construed as covenants
running with the land; and wherever reference is made to either of the parties
hereto, it shall be held to include and apply also to the heirs, executors,
administrators, successors, and assigns of such party, as if in each and every
case so expressed.
U. Entire Agreement. This Lease contains the entire agreement
between the parties and cannot be changed, altered, or amended without the
express written consent of all parties hereto. This Agreement shall be construed
under the laws of the State of Mississippi.
JCD PARTNERSHIP, A MISSISSIPPI
PARTNERSHIP, LESSOR
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇, Jr., M.D.
--------------------------------------
C. ▇▇▇▇▇ ▇▇▇▇▇, JR., M.D., Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Partner
Attest: RENEX DIALYSIS FACILITIES, INC., A
MISSISSIPPI CORPORATION, LESSEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------- --------------------------------------
Secretary ▇▇▇▇▇ ▇. ▇▇▇▇, President
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STATE OF FLORIDA
COUNTY OF DADE
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and
for the jurisdiction aforesaid, the within named C. ▇▇▇▇▇ ▇▇▇▇▇, JR. M.D.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who, after having been by me first
duly sworn, state on their oath that they are all partners of JCD PARTNERSHIP, a
Mississippi Partnership, and that they signed, executed, delivered and entered
into the above and foregoing Lease Contract and Agreement for and on behalf of
said partnership being first duly authorized so to do.
SWORN TO AND SUBSCRIBED BEFORE ME, this 29th day of December,
1995.
My Commission Expires: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
August 04, 1997 ----------------------------------
Commission No.: CC-796271 NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF DADE
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and
for the jurisdiction aforesaid, the within named ▇▇▇▇▇ ▇. ▇▇▇▇, who, after
having been by me first duly sworn, stated on his oath that he is president of
RENEX DIALYSIS FACILITIES, INC., a Mississippi corporation, and that he signed,
executed, delivered, and entered into the above and foregoing Lease Contract and
Agreement for and on behalf of said corporation being first duly authorized so
to do.
SWORN TO AND SUBSCRIBED BEFORE ME, this 29th day of December,
1995.
My Commission Expires: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
August 04, 1997 -----------------------------------
Commission No.: CC-796271 NOTARY PUBLIC
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EXHIBIT "A"
A 3.3 acre parcel being part of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ SUBDIVISION
as recorded in Book 2 at Page 107 in the office of the Chancery
Clerk of ▇▇▇▇▇ Co., being situated in the NE 1/4 of Sec. 14, T5N,
RIW, ▇▇▇▇▇ Co., Miss., and being more particularly described as
follows:
Commencing at the intersection of the south line of T.V. Road and
the west line of ▇▇▇▇▇▇▇▇ Road, said point being the northeast
▇▇▇▇▇ of said Lot 5 of ▇▇▇▇▇▇▇▇ Farm, run thence NORTHWESTERLY
along the south line of T.V. Road 858.0 ft.; thence S 14'52' E -
1396.5 ft.; thence S 55 0 25' W - 174.0 ft. to the POINT OF
BEGINNING; run thence S 08'45' W 460.5 ft. to a point in the
northerly right of way of Raymond Rd.; run thence SOUTHWESTERLY
along said right of way 155.3 ft. to the southeast ▇▇▇▇▇ of ▇▇▇
▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Farms Subdivision; run thence N 29'
00' W along the east side of said ▇▇▇▇▇▇▇ Road Farms 600. 0 ft.
to the northeast ▇▇▇▇▇ of Lot 5 thereof; run thence N 66'46' E -
309.3 ft.; thence S 29'00' E - 116.8 ft. to the POINT OF
BEGINNING.
