<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
---------------- -----------------
Commission File No. 0-27640
RENAL CARE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 62-1622383
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2100 West End Ave., Suite 800, Nashville, Tennessee 37203
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (615) 321-2333
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days).
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock as of the latest practicable date.
Class Outstanding at November 14, 1996
- --------------------------------------------------------------------------------
Common Stock, $.01 par value 12,625,954
<PAGE> 2
RENAL CARE GROUP, INC.
INDEX
<TABLE>
<S> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
General Information
Consolidated Balance Sheets
December 31, 1995 and September 30, 1996 (unaudited)
Consolidated Statements of Operations -
For the three months ended September 30, 1995 and 1996 (unaudited)
Consolidated Statements of Cash Flows -
For the three months ended September 30, 1995 and 1996 (unaudited)
Statement of Changes in Stockholders' Equity (unaudited)
Notes to the Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition
And Results of Operations
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
</TABLE>
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
GENERAL INFORMATION
Renal Care Group, Inc. ("RCG" or the "Company") was incorporated in June 1995
for the purpose of acquiring five dialysis businesses ("Founding Groups").
Simultaneously with the Company's initial public offering on February 7, 1996,
the Company acquired these businesses in a purchase transaction using
historical cost accounting, since no single owner of any Founding Group held
more than a 50% equity interest in the Company as of the closing of the
offering.
The accompanying statements of operations and cash flows for the period ended
September 30, 1996 include the consolidated results of operations and cash
flows of the Founding Groups for the period from February 1, 1996 ("Effective
Date") through September 30, 1996 (eight months), and the operations and cash
flows of two additional businesses, Main Line Suburban Dialysis Centers,
Inc. and RenalWest L.C., acquired in pooling of interests transactions as more
fully described in Note 4, for the nine months ended September 30, 1996.
<PAGE> 4
RENAL CARE GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1995 1996
------------ -------------
(Unaudited)
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents $ 1,341 $ 25,476
Accounts receivable, net 8,204 26,678
Inventories 727 2,525
Prepaid expenses and other assets 650 1,751
Related party receivable 196 -
------------ -------------
Total current assets 11,118 56,430
------------ -------------
Property, plant and equipment, net 9,225 27,292
Intangible assets, net 53 3,310
Other assets 369 1,747
------------ -------------
Total assets $ 20,765 $ 88,779
============ =============
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Accounts payable $ 2,175 $ 8,663
Accrued wages and benefits 1,420 4,721
Due to third parties 4,265 4,884
Due to related parties 270 -
Accrued expenses 729 6,675
Current portion of long-term debt 3,677 6,638
Income tax liability - 623
------------ -------------
Total current liabilities 12,536 32,204
------------ -------------
Long term debt 3,663 -
Deferred income taxes - 2,471
------------ -------------
Total liabilities 16,199 34,675
------------ -------------
Stockholders' equity:
Common stock, $.01 par value, 22,000
shares authorized, 12,556 shares issued
and outstanding 29 126
Additional paid-in capital 5,254 53,860
Retained earnings (717) 118
------------ -------------
Total stockholders' equity 4,566 54,104
------------ -------------
Total liabilities and stockholders' equity $ 20,765 $ 88,779
============ =============
</TABLE>
See accompanying notes to Consolidated Financial Statements
<PAGE> 5
RENAL CARE GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE FOR THE THREE FOR THE NINE FOR THE NINE
MONTHS ENDED MONTHS ENDED MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1995 SEPTEMBER 30, 1996 SEPTEMBER 30, 1995 SEPTEMBER 30, 1996
------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
Net revenue $ 10,830 $ 34,627 $ 32,072 $ 90,987
Operating costs and expenses:
Patient care costs 6,783 24,241 20,090 63,397
General and administrative expenses 2,137 3,443 6,521 9,427
Provision for doubtful accounts 433 639 1,596 1,710
Depreciation and amortization 454 1,212 1,120 3,197
Merger Expenses - 1,280 - 1,960
-------------- --------------- -------------- ---------------
Total operating costs and expenses 9,807 30,815 29,327 79,691
-------------- --------------- -------------- ---------------
Income from operations 1,023 3,812 2,745 11,296
-------------- --------------- -------------- ---------------
Interest income, net (114) 153 (335) 394
-------------- --------------- -------------- ---------------
Income before income taxes 909 3,965 2,410 11,690
-------------- --------------- -------------- ---------------
Provision for income taxes - 2,517 - 4,609
-------------- --------------- -------------- ---------------
Net Income $ 909 $ 1,448 $ 2,410 $ 7,081
============== =============== ============== ===============
Earnings Per Share $ 0.31 $ 0.11 $ 0.82 $ 0.53
============== =============== ============== ===============
Weighted Average Shares Outstanding 2,938 13,580 2,938 13,350
============== =============== ============== ===============
</TABLE>
See accompanying notes to the Consolidated Financial Statements
<PAGE> 6
RENAL CARE GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE NINE FOR THE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1995 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 2,410 $ 7,081
Adjustments to reconcile net income to net cash
provided by operating activities (net of effect of
combination):
Depreciation and Amortization 1,120 3,197
Gain on Sale of Property (7) (118)
Equity in Earnings of Subsidiary - (309)
Deferred Income Taxes - 1,500
Changes in operating assets and liabilities, net
of effects of companies acquired:
Accounts receivable, net 988 (5,469)
Inventories 82 13
Prepaid Expenses and Other Assets 127 2,177
Related Party Receivables 151 -
Accounts Payable 279 1,596
Accrued Wages and Benefits 430 -
Accrued Expenses and Other Liabilities 1,238 3,770
Income Tax Liability - 623
------------- ------------
Net cash provided by operating activities 6,818 14,061
------------- ------------
Cash flows from investing activities:
Sale of property and equipment 48 196
Additions to property and equipment, net (2,930) (9,880)
Cash Acquired through business combination - 189
Change in other assets (27) -
Cash distributions to founders, net of cash
contributions - (35,796)
------------- ------------
Net cash used in investing activities (2,909) (45,291)
------------- ------------
Cash flows from financing activities:
Payments on line of credit (4,398) (10,814)
Proceeds from line of credit 4,658 10,358
Payments on long-term debt and capital leases (1,306) (10,266)
Proceeds from long-term debt and capital leases 560 540
Capital contributions 592 (4)
Distribution to owners (3,930) (6,246)
IPO proceeds, net of IPO costs - 71,797
------------- ------------
Net cash provided by financing activities (3,824) 55,365
------------- ------------
Net increase in cash and cash equivalents 85 $ 24,135
------------- ------------
Cash and cash equivalents, beginning of period 298 $ 1,341
------------- ------------
Cash and cash equivalents, end of period $ 383 $ 25,476
============= ============
Supplemental disclosure:
Interest paid $ 336 $ 588
============= ============
Schedule of non-cash investing and financing transactions:
Common stock issued to Founders in the combination $ - $ 16,237
============= ============
Non-cash conversion of redeemable preferred stock to
common stock $ - $ 2,451
============= ============
</TABLE>
See accompanying notes to the Consolidated Financial Statements
<PAGE> 7
RENAL CARE GROUP, INC.
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
TOTAL
COMMON STOCK ADDITIONAL RETAINED STOCKHOLDERS'
SHARES AMOUNT PAID-IN CAPITAL EARNINGS EQUITY
------------ -------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1995 2,938 $ 29 $ $5,254 $ (717) $ 4,566
========= ====== ========= ======= =========
Issuance of common stock in public offering,
net of underwriting discounts and commissions 4,485 45 75,034 75,079
Initial public offering costs (3,282) (3,282)
Cash distributions paid to Founding Companies (39,699) (39,699)
Dividend distribution (6,246) (6,246)
Issuance of stock portion of consideration to
Founding Groups 4,834 49 16,188 16,237
Equity Acquired in Business Combination 299 3 365 368
Net Income - - - 7,081 7,081
--------- ------ --------- ------ ---------
Balance, September 30, 1996 12,556 $126 $53,860 $ 118 $ 54,104
========= ====== ========= ====== =========
</TABLE>
See accompanying notes to Consolidated Financial Statements
<PAGE> 8
RENAL CARE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1996
(unaudited)
NOTE 1 - BASIS OF PRESENTATION
Overview
In February 1996, Renal Care Group, Inc., a Delaware corporation ( the
"Company") acquired simultaneously with the closing of its initial public
offering (the "Offering"), five companies: Kidney Care, Inc. ("KCI"), and
Medical Enterprises, Ltd. ("MEL") (KCI and MEL collectively "Kidney Care"),
D.M.N. Professional Corporation ("DMN"), Tyler Nephrology Associates, P.A.
("TNA"), Kansas Nephrology Associates ("KNA"), and Renal Care Group, Inc. a
Tennessee Corporation ("RCG"). These five businesses, together with the
Company, are referred herein as the "Founding Companies" and the transaction
described above is referred to herein as the "Combination". The Company is a
specialized provider of nephrology services.
Interim Financial Statements
In the opinion of management, the information contained herein reflects all
adjustments necessary to make the results of operation for the interim periods
a fair statement of such operations. All such adjustments are of a normal
recurring nature. Operating results for interim periods are not necessarily
indicative of results which may be expected for the year as a whole. It is
suggested that these financial statements be read in conjunction with the
financial statements of Renal Care Group, Inc. and Founding Companies and the
related notes thereto included in the Company's Registration Statement on Form
S-1 (File No. 33-80221) declared effective by the Securities and Exchange
Commission on February 6, 1996; and the Company's Registration Statement on
Form S-1 (File No. 333-13813) as filed with the Securities and Exchange
Commission on October 9, 1996, as further described in Note 6.
Transitional Report
No transitional report is included in this Form 10Q for the Company's's
predecessor, Kidney Care, Inc., which had a January 31, year-end, since its
operations are included in these consolidated financial statements from
February 1, 1996, the "effective date" of its acquisition by Renal Care Group,
Inc.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements of Renal Care Group, Inc. include the
accounts of the Company and its subsidiaries. All intercompany transactions
have been eliminated in consolidation.
Net income per share for the three months ended September 30, 1996 has been
computed based on weighted average shares outstanding of 13,580,000 which
consists of 4,834,000 shares issued to owners of the Founding Companies,
4,485,000 shares issued in connection with the Company's initial public
offering, 3,237,000 shares issued through business combinations and 1,024,000
shares related to outstanding options and warrants.
<PAGE> 9
RENAL CARE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 3 - INITIAL PUBLIC OFFERING
In February 1996, the Company completed an initial public offering, which
involved a sale to the public of 4,485,000 shares of Common Stock at $18.00 per
share. The net proceeds to the Company from the Offering net of underwriting
discounts and commissions were approximately $75,079,000. Costs incurred in
connection with organization of the Company and the initial public offering
were $3,282,000. Of the net proceeds $39,699,000 were used to pay the cash
portion of the consideration for the Combined Companies and $10,182,000 was
used to repay indebtedness assumed by the Company.
NOTE 4 - ACQUISITIONS
On April 26, 1996, the Company completed a merger with Mainline Suburban
Dialysis ("Mainline") of Wynnewood, Pennsylvania, which operates five dialysis
centers serving 350 patients in the suburban Philadelphia area. The merger has
been accounted for as a pooling of interests and, accordingly, the Company's
consolidated financial statements have been restated to include the accounts
and operations of Mainline for all periods prior to the merger. In
consideration for the transaction, the Company issued 538,000 shares of its
common stock.
On September 30, 1996 the Company completed a merger with RenalWest, L.C.
("RenalWest"), a Mesa, Arizona based provider of dialysis services, which
currently operates nineteen out-patient dialysis centers and three centers
providing home dialysis care to approximately 1,200 patients in the Metro
Phoenix area and throughout rural Arizona. The merger has been accounted for as
a pooling of interests and, accordingly, the Company's consolidated financial
statements have been restated to include the accounts and operations of
RenalWest for all periods prior to the merger. In consideration for the
transaction, the Company issued 2,400,000 shares of its common stock.
<PAGE> 10
RENAL CARE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Separate net revenue and net income amounts of the Founding Companies, Main
Line and RenalWest are presented in the following table. In addition, the
table includes unaudited pro forma net income which reflect the elimination
of the nonrecurring merger costs in 1996 and pro forma adjustments to present
income taxes on the basis on which they will be reported in future periods.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
(unaudited) (unaudited)
1995 1996 1995 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Revenue
Main Line $ 2,698 $ 3,006 $ 8,266 $ 8,974
RenalWest 8,132 8,747 23,806 26,133
RCG - 22,874 - 55,880
-------- -------- -------- --------
Total $10,830 $34,627 $32,072 $90,987
Net Income
Main Line $ 69 $ 351 $ 185 $ 998
RenalWest 840 1,221 2,225 3,529
RCG - (124) - 2,554
-------- -------- -------- --------
Net income as reported 909 1,448 2,410 7,081
Merger costs, net of tax - 807 - 1,235
Subchapter S status (336) (452) (892) (1,257)
Merger related deferred tax liability - 1,500 - 1,500
------- ------ ------- ------
Pro forma net income $ 573 $3,303 $ 1,518 $8,559
======= ====== ======= ======
</TABLE>
NOTE 5 - INCOME TAXES
Income taxes for the three months ended September 30, 1996 and the nine months
ended September 30, 1996 are presented at the Company's effective tax rate of
37.0% and 37.3%, respectively, increased by a one-time, merger related income
tax charge partially offset by earnings from a Subchapter S corporation not
subject to income tax for all periods presented.
NOTE 6 - SUBSEQUENT EVENTS
On October 9, 1996 the Company filed a Registration Statement on Form S-1 to
offer 3,000,000 shares of the Company's Common Stock. Of the 3,000,000 shares
of Common Stock of Renal Care Group, Inc., 1,276,318 shares are being offered
by the Company and 1,723,682 shares are being offered by certain stockholders
of the Company. The Company will not receive any of the proceeds from the
sales of shares of Common Stock by the Selling Stockholders.
<PAGE> 11
RENAL CARE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
OVERVIEW
As discussed in Item 1, the Company conducted no operations until it acquired
the Founding Companies and simultaneously completed an initial public
offering in February 1996. The following pro forma statements of operations
are presented as if the Company and the five dialysis businesses and the
acquisition of Mainline Suburban Dialysis and RenalWest had been combined as of
the beginning of the periods presented.
Renal Care Group, Inc.
Pro Forma Combined Results of Operations
(in thousands, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
PROFORMA ACTUAL PROFORMA PROFORMA
1995 1996 1995 1996
<S> <C> <C> <C> <C>
Net revenue $28,843 $34,627 $ 84,749 $ 97,363
Operating costs and expenses:
Patient care costs 20,074 24,241 58,956 68,124
General and administrative expenses 3,154 3,443 9,775 9,860
Provision for doubtful accounts 902 639 2,775 1,835
Depreciation and amortization 1,037 1,212 2,824 3,370
------- ------- -------- --------
Total cost and expenses 25,167 29,535 74,330 83,189
------- ------- -------- --------
Income from operations 3,676 5,092 10,419 14,174
Interest income, net (283) 153 (606) 300
------- ------- -------- --------
Income before income taxes 3,393 5,245 9,813 14,474
------- ------- -------- --------
Provision for income taxes 1,289 1,942 3,729 5,402
------- ------- -------- --------
Net Income before Merger Costs $ 2,104 $ 3,303 $ 6,084 $ 9,072
======== ======= ======== ========
Earnings Per Share before Merger Costs $ 0.19 $ 0.24 $ 0.55 $ 0.69
======== ======= ======== ========
Net Income after Merger Costs $ 2,104 $ 1,448 $ 6,084 $ 7,837
======== ======= ======== ========
Earnings Per Share after Merger Costs $ 0.19 $ 0.11 $ 0.55 $ 0.59
======== ======= ======== ========
Weighted average number of common
shares and equivalents outstanding 11,091 13,580 11,091 13,207
</TABLE>
<PAGE> 12
RENAL CARE GROUP, INC.
MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS (PRO FORMA)
THREE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1995
Net revenue. Net revenue increased from $28.8 million for the three months
ended September 30, 1995 to $34.6 million for the three months ended September
30, 1996, an increase of $5.8 million or 20.1%. This increase resulted
primarily from a 14.4% increase in the number of treatments from 156,475 in the
1995 period to 179,080 in the 1996 period and a 4.9% increase in average
revenue per treatment from $183 in 1995 to $191 in 1996. The remaining revenue
increase is a result of higher management fees and higher earnings of 50% owned
partnerships in Mississippi and Kansas. The revenue per treatment increase is
due to higher revenue generating acute treatments, greater erythropoietin (EPO)
and other chargeable drug utilization.
Patient Care Costs. Patient care costs consist of costs directly related to
the care of patients, including direct labor, drugs and other medical supplies,
and operational costs of facilities. Patient care costs increased from $20.1
million for the three months ended September 30, 1995 to $24.2 million for the
three months ended September 30, 1996, an increase of $4.1 million or 20.4%.
This increase was due to the increase in number of associated treatments, which
caused a corresponding increase in the use of drugs and supplies. Patient care
costs as a percent of net revenue increased from 69.6% in the 1995 period to
70.0% in the 1996 period. Patient care cost per treatment increased from $128
in 1995 to $135 in 1996, or 5.5%. This increase is due to normal healthcare
inflation, greater EPO and other drug utilization costs, and the increase in
higher cost acute treatments.
General and Administrative Expenses. General and administrative
expenses include corporate office costs and clinic costs not directly related
to the care of patients, including clinic administration, accounting, billing,
and information systems. General and administrative expenses increased from
$3.2 million for the three months ended September 30, 1995 to $3.4 million for
the three months ended September 30, 1996, an increase of $200,000 or 6.3%.
General and administrative expenses decreased as a percent of revenue in the
1996 period by 1.0%, primarily due to such expenses being spread against the
higher revenue base.
Provision for Doubtful Accounts. Provision for doubtful accounts is a
function of patient mix, billing practices, and other factors. It is the
Company's practice to reserve for doubtful accounts in the period in which the
revenue is recognized based on management's estimate of the net collectibility
of the accounts receivable. The provision for doubtful accounts decreased from
$902,000 for the three months ended September 30, 1995 to $639,000 for the
three months ended September 30, 1996. The provision for doubtful accounts as
a percent of net revenue declined from 3.1% in the 1995 period to 1.9% in the
1996 period. This decrease represented a return to a normal level of provision
for doubtful accounts in the 1996 period from the 1995 period when additional
expense was recorded due to a deterioration in the aging of certain accounts
receivable.
<PAGE> 13
RENAL CARE GROUP, INC.
MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS - (CONTINUED)
Depreciation and Amortization. Depreciation and amortization
increased from $1.0 million for the three months ended September 30, 1995 to
$1.2 million for the three months ended September 30, 1996, an increase of
$200,000 or 20.0%. This net increase was due to the purchase of patient care
facilities previously leased, higher than normal replacement of dialysis
machines and the purchase of a clinical computer system.
Income from Operations. Income from operations increased from $3.7
million for the three months ended September 30, 1995 to $5.1 million for the
three months ended September 30, 1996, an increase of $1.4 million, or 37.8%.
Income from operations as a percent of net revenue increased from 12.7% in the
1995 period to 14.7% in the 1996 period. Income from operations increased due
to the increase in net revenue in excess of patient care costs, which was
primarily due to an increase in the growth rate of the number and types of
treatments.
Interest Income/Expense. Interest expense decreased from $283,000 for
the three months ended September 30, 1995 to a net interest income of $153,000
for the three months ended September 30, 1996, a net increase of $436,000.
This net increase was due to the payoff of substantially all borrowings of the
Founders at the time of the Initial Public Offering through the use of
proceeds.
RESULTS OF OPERATIONS (PRO FORMA)
NINE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1995
Net Revenue. Net revenue increased from $84,749,000 for the nine months
ended September 30, 1995 to $97,363,000 for the nine months ended September 30,
1996, an increase of $12,614,000, or 14.9%. This increase resulted primarily
from a 9.6% increase in the number of treatments from 465,637 in the 1995
period to 510,360 in the 1996 period and a 4.4% increase in the average revenue
per treatment from $182 in the 1995 period to $190 in the 1996 period. The
revenue per treatment increase was due to an increase in EPO utilization and
higher-revenue generating acute treatments. The remaining revenue increase
resulted from management fee income.
Patient Care Costs. Patient care costs consist of costs directly related
to the care of patients, including direct labor, drugs, and other medical
supplies and operational costs of facilities. Patient care costs increased
from $58,956,000 for the nine months ended September 30, 1995 to $68,124,000
for the nine months ended September 30, 1996, an increase of $9,168,000, or
15.6%. This increase was due to the increase in the number of treatments,
which caused a corresponding increase in the use of drugs, supplies and labor.
Patient care costs as a percentage of net revenue increased slightly from 69.6%
in the 1995 period to 70.0% in the 1996 period. Average patient care cost per
treatment increased from $127 in the 1995 period to $133 in the 1996 period.
This increase was due to normal health care inflation, increased EPO
utilization and the increase in higher cost acute treatments.
<PAGE> 14
RENAL CARE GROUP, INC.
MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS - (CONTINUED)
General and Administrative Expenses. General and administrative
expenses include corporate office costs and clinic costs not directly related
to the care of patients, including clinic administration, accounting, billing
and information systems. General and administrative expenses increased from
$9,775,000 for the nine months ended September 30,1995 to $9,860,000 for the
nine months ended September 30, 1996, an increase of $85,000, or 0.8%. The net
increase was a result of increased corporate overhead expenses partially offset
by reduced compensation to prior physician owners. General and administrative
expenses as a percentage of revenue decreased from 11.5% in the 1995 period to
10.1% in the 1996 period.
Provision for Doubtful Accounts. The provision for doubtful accounts
decreased from $2,775,000 for the nine months ended September 30, 1995 to
$1,835,000 for the nine months ended September 30, 1996. The provision for
doubtful accounts as a percentage of net revenue decreased from 3.3% in the
1995 period to 1.9% in the 1996 period. This decrease represented a return to
a normal level of provision for doubtful accounts in the 1996 period from the
1995 period when additional expense was recorded due to a deterioration in the
aging of certain accounts receivable. The provision for doubtful accounts is a
function of patient mix, billing practices and other factors. It is the
Company's practice to reserve for doubtful accounts in the period in which
revenue is recognized based on management's estimate of the net collectibility
of accounts receivable.
Depreciation and Amortization. Depreciation and amortization
increased from $2,824,000 for the nine months ended September 30, 1995 to
$3,370,000 for the nine months ended September 30, 1996, an increase of
$546,000, or 19.3%. This increase was due to the purchase of patient care
facilities previously leased, higher than normal replacement of dialysis
machines and the purchase of a clinical computer system.
Income from Operations. Income from operations increased from
$10,419,000 for the nine months ended September 30, 1995 to $14,174,000 for the
nine months ended September 30, 1996, an increase of $3,755,000, or 36.0%.
Income from operations as a percentage of net revenue increased from 14.6% in
the 1995 period to 12.5% in the 1996 period.
LIQUIDITY AND CAPITAL RESOURCES
The Company requires capital primarily for the acquisition and the
development of dialysis centers, the purchase of property and equipment for
existing centers and to finance working capital requirements. At September 30,
1996, the Company's working capital was $24,226,000, cash and cash equivalents
were $25,476,000 and the Company's current ratio was 1.8:1.
The Company's net cash provided by operating activities was
$14,061,000 in the nine months ended September 30, 1996. Generally, cash
provided by operating activities resulted from net income before depreciation
and amortization expense, partially offset by increases in accounts receivable.
The Company's net cash used in investing activities was $45,291,000 in the nine
months ended September 30, 1996. Cash used in investing activities resulted
from $39,699,000 of cash, working capital and certain
<PAGE> 15
RENAL CARE GROUP, INC.
MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS - (CONTINUED)
other distributions at the closing of the Combination (including approximately
$6,899,000 in distributions to former stockholders of the Founding Companies)
and $9,880,000 of capital expenditures, partially offset by the $3,903,000 cash
balances of the Founding Companies acquired at the time of the Combination.
Cash provided by financing activities was $55,365,000 for the nine months ended
September 30, 1996. The Company's initial public offering in February 1996
resulted in the sale of 4,485,000 shares from which the Company received
$71,797,000 after offering costs. Long-term debt repayments totaled
$10,182,000, and distributions of $6,246,000 were made to shareholders of
acquired companies since the Combination.
The Company's line of credit allows for borrowings of up to
$35,000,000 to be used for acquisitions, working capital and capital
expenditures. The line of credit requires payments of interest only until May
1998 with the balance outstanding at that time amortized quarterly over the
next three years. The credit facility bears interest at one of two floating
rates selected by the Company: (i) the base rate plus margin ranging from
0.00% to 1.00% or (ii) LIBOR plus a margin of 0.95% to 2.70%. There were no
amounts outstanding under the line of credit at September 30, 1996.
At November 14, 1996, the Company had $1,380,000 of outstanding
Convertible Notes due in December 1996 that are convertible into Common Stock
at a price of $7.50 per share.
A significant component of the Company's growth strategy is the
acquisition and development of dialysis centers. The Company believes that
existing cash and funds from operations, together with funds available under
the line of credit, will be sufficient to meet the Company's acquisition,
expansion, capital expenditure and working capital needs through at least the
end of 1997. In order to finance certain large strategic acquisition
opportunities, the Company may incur from time to time additional short and
long-term bank indebtedness and may issue equity or debt securities, the
availability and terms of which will depend on market and other conditions.
There can be no assurance that such additional financing, if required, will be
available on terms acceptable to the Company.
This report, press releases and other public statements by the Company
contain "forward-looking statements," within the meaning of various provisions
of the federal securities laws, that address activities, events or developments
that will or may occur in the future. These statements are based on
assumptions and analyses made by the Company in light of its experience and
perception of historical trends, current conditions and expected future
developments, and other factors believed appropriate in the circumstances.
Actual results and developments are subject to a number of risks and
uncertainties, including general economic, market or business conditions,
opportunities (or lack thereof) that may be presented to and pursued by the
Company, competitive actions by other companies, changes in laws or
regulations; and other factors as may be discussed from time to time in the
Company's SEC reports and other filings, many of which are beyond the control
of the Company. Accordingly, readers are cautioned not to place undue reliance
on such forward looking statements, which speak only as of the date made and
which the Company undertakes no obligation to revise to reflect events after
the date made.
<PAGE> 16
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None
ITEM 2. CHANGES IN SECURITIES.
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
(a) A special meeting of shareholders was held on September 27, 1996
(b) The meeting did not involve election of directors
(c) The shareholders voted 6,733,464 shares in the affirmative and
0 shares in the negative to approve the merger between Renal
Care Group, Inc. and RenalWest
(d) The shareholders voted 6,184,751 shares in the affirmative and
720,530 shares in the negative to approve an increase in the
number of shares reserved for issuance under in the 1996 Stock
Option Plan from 488,448 to 1,000,000
ITEM 5. OTHER INFORMATION.
None
ITEM 6. EXHIBITS AND REPORTS OF FORM 8-K.
(a) Exhibits
10.1 Employment Agreement, dated June 1, 1996, between the
Company and Ray Hakim, M.D.
10.2 Lease Agreement, dated April 16, 1996, between Lowes
Nashville Hotel Corp. and Renal Care Group, Inc.
27 Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K -- There were no reports on Form 8-K filed
for the three months ended September 30, 1996.
<PAGE> 1
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of June 1, 1996, by and
between RENAL CARE GROUP, INC., a Delaware corporation (the "Company"), and
RAYMOND HAKIM, M.D., Ph.D. (hereinafter "Employee").
WITNESSETH:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on the terms and conditions contained herein;
and
WHEREAS, in serving as an employee of the Company, Employee has and
will participate in the use and development of confidential proprietary
information about the Company, its customers and suppliers, and the methods
used by the Company and its employees in competition with other companies, as
to which the Company desires to protect fully its rights; and
WHEREAS, the Company wishes to enter into an agreement with Employee
whereby Employee shall agree not to compete with the Company in any current or
future business activity conducted or entered into by the Company and to hold
certain information obtained by and through Employee's employment in
confidence.
NOW, THEREFORE, in consideration of the compensation payable to
Employee by the Company pursuant to this Agreement, and the mutual promises,
covenants, representations and warranties contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. Employment.
Effective on May 1, 1996, the Company hereby employs
Employee, and Employee hereby agrees to accept employment with the Company,
upon the terms and conditions hereinafter set forth.
2. Term.
This Agreement shall begin on May 1, 1996 (the "Effective
Date"), and shall continue for an initial period of thirty-six (36) months (the
"Initial Period"), subject to earlier termination by employee or the Company as
hereinafter provided. This Agreement shall renew for additional terms of twelve
(12) months each, subject to earlier termination as hereinafter provided, on
the same terms and conditions (subject to mutually agreeable modifications, if
any).
<PAGE> 2
3. Compensation and Benefits.
(a) Base Compensation: The Company shall pay Employee an
annual salary of Two Hundred Thousand Dollars ($200,000), as may be adjusted as
provided herein (the "Base Compensation"), payable according to the pay periods
of the Company as may be in effect from time to time. Such payments shall be
prorated for periods less than a full pay period. The Base Compensation shall
be subject to withholding for federal, state and local payroll and all other
taxes or withholdings applicable to Employee. Any increases of the Base
Compensation shall be at the discretion of the Company, provided that any
decreases to the then current Base Compensation shall require the consent of
Employee.
(b) Benefits: During the term of this Agreement, Employee
shall also be entitled to participate in the insurance and other fringe
benefits made available generally to similar employees of the Company, as such
benefits may be determined from time to time by the Company, provided that
Employee shall have at least four (4) weeks of paid vacation time.
(c) Bonuses: In addition to the Base Compensation payable to
Employee pursuant to Section 3(a) above, from time to time Employee may be
entitled to an annual bonus as determined in the sole discretion of the
Company.
(d) Expenses: The Company shall reimburse Employee for any
and all expenses reasonably incurred by employee incident to the performance of
the duties imposed upon Employee hereunder.
4. Duties, Extent of Services:
Employee is engaged as Executive Vice President and Chief
Medical Officer and shall perform such duties and responsibilities as are
typically incident thereto, and shall perform in a faithful and competent
manner such additional duties as may be reasonably assigned from time to time
by the Company. Such duties shall be performed on a full-time basis for the
Company at the Company's offices in Nashville, Tennessee. Employee may be
required, from time to time, to perform his duties temporarily hereunder at
such other place or places as the Company shall reasonably require, provided
that such period does not exceed thirty (30) consecutive days without
Employee's consent and that during any such period Employee is able to return
to Nashville, Tennessee at the Company's expense for weekends.
Employee shall devote all of Employee's business time, attention,
knowledge, and skill solely to the business and interest of the Company, and
the Company shall be entitled to all the benefits, profits, and other issues
arising from, or incident to, all work, services, and advice of Employee.
2
<PAGE> 3
5. Termination.
This Agreement may be terminated by the parties in the
manners specified below:
(a) Termination without Cause. Either the Company or the
employee may terminate Employee's employment under this Agreement at any time
for any reason upon thirty (30) day's prior written notice to the other party.
(b) Termination for Cause
The Company may terminate this Agreement on written
notice at any time for "cause". For purposes of this Agreement, "cause" shall
mean: (i) Employee is convicted of, pleads guilty to, or confesses to a felony
or any crime involving any act of dishonesty, fraud, misappropriation,
embezzlement or moral turpitude, in which event the Company may terminate this
Agreement immediately, (ii) the misconduct or gross negligence by Employee in
connection with the performance of Employee's duties hereunder, (iii) the
engaging by Employee in any fraudulent, disloyal or unprofessional conduct
which results in an injury to the Company, its affiliates or any of its or
their centers, monetarily or otherwise, (iv) Employee breaches any provision of
Section 6 of this Agreement, or (v) the failure by Employee to otherwise
substantially perform his duties with the Company (other than any such failure
resulting from the disability of Employee under Section 5(c)(i)) or the breach
of any provision of this Agreement other than Section 6. In the event of any
termination for cause pursuant to the provisions of (ii), (iii), (iv) or (v) of
this subsection, the Company shall give Employee written notice prior to such
termination detailing the specific acts, actions, failures, or events upon
which the forecast termination is based, and Employee shall have fifteen (15)
days after such written notice to cease such actions or otherwise correct any
such failure or breach. If Employee does not cease such action or otherwise
correct such failure or breach within such fifteen day time period, or having
once received such written notice and ceased such actions or corrected such
failure or breach, Employee at any time thereafter again so acts, fails or
breaches, the Company may terminate this Agreement immediately.
(c) Involuntary Termination.
The employment of Employee hereunder shall be
automatically terminated by the death or disability of Employee as outlined
below.
(i) Disability. The Company may terminate this
Agreement at the time Employee shall have been Disabled for a continuous period
of six (6) months during any continuous twelve month period. For purposes of
this Paragraph 5(c)(i), the term "Disabled" shall mean Employee's inability to
perform the essential functions of his duties, with or without reasonable
accommodation. During Employee's six month period of Disability or such longer
wait period as may be provided for in any policy of disability that may be
maintained by the Company for the benefit of Employee, the Company agrees to
continue to pay Employee's Base
3
<PAGE> 4
Compensation (less regular withholdings for payroll or other taxes and other
required or proper items, and less any payments from all disability plans
provided by the Company). In the event of a termination of Employee on account
of Disability, however, the Company shall be obligated to pay only Employee's
Base Compensation that has been earned through the effective date of
termination (less regular withholdings for payroll or other taxes and other
required or proper times, and less any payments from all disability plans
provided by the Company).
(ii) Death. In the event Employee shall die
during the term of this Agreement, this Agreement shall terminate and
Employee's estate shall receive the remainder of the Base Compensation set
forth in Section 3(a) hereof accrued to the last day of the month in which
death occurs.
(d) Post-Termination Compensation. Except as provided in
Section 5(c) above, upon termination of this Agreement, the Company shall be
relieved of all of its obligations hereunder notwithstanding any period of time
remaining under the initial or any renewal term, subject to the following:
(i) Termination without Cause. In the event
that the Company terminates Employee's employment hereunder without Cause
under Section 5(a) above, then Employee may be offered in writing within
five days after the effective date of such termination and shall have
accepted in writing within five (5) days, as Employee's sole and exclusive
remedy, an opportunity to receive the Base Compensation (as then in
effect) for a period of twelve (12) months after the termination date and,
if he accepts such severance within five days, the Employee's post
employment non-compte obligation under Section 6(a) will then be
effective. In the event that Employee terminates his or her employment
under Section 5(a) above, the Company's obligation to pay Employee's Base
Compensation shall terminate and the Employee's post employment
non-compete obligation under Section 6(a) shall not apply.
(ii) Termination for Cause. In the event that
the Company terminates Employee's employment hereunder with Cause under Section
5(b) above, then Employee shall, after the effective date of such termination,
receive the Base Compensation (as then in effect) for a period of one (1) month
after the termination date.
(iii) Termination following Change in Control.
If within twelve (12) months following a Change in Control (as defined
below), either (A) the Company terminates the employment of Employee
hereunder without Cause under Section 5(a) above or (B) Employee resigns
from a declined reassignment of a job that is not reasonably equivalent in
responsibility or compensation or that is not in the same geographic area,
then, in lieu of any other compensation that may be specified herein,
Employee shall continue to receive the Base Compensation (as then in
effect) for a period of thirty-six (36) months from the date of
termination payable in the same manner as it was being paid as of the date
of termination, provided, however, that the salary payment provided for
hereunder may at the option of the Company be paid in a single lump-sum
payment, to be paid not later than thirty (30) days after
4
<PAGE> 5
termination. In the event such payment obligation arises, no compensation
received from other employment (or otherwise) shall reduce the obligation to
make the payment(s) described in this paragraph. Employee, at his sole option,
may decline to accept such termination pay when it is initially offered and
thereby avoid the post employment non-compete described in Section 6(a).
(e) Change in Control. "Change in Control" means a change in
control of the Company of a nature that would be required to be reported
(assuming such event has not been "previously reported") in response to Item
1(a) of a Current Report on Form 8-K pursuant to Section 13 of 15(d) of the
Exchange Act of 1934 (the "Exchange Act"); provided that, without limitation, a
Change in Control shall also be deemed to have occurred at such time as:
(i) any "person" within the meaning of Section
14(d) of the Exchange Act, other than the Company; a subsidiary, or any employee
benefit plan(s) sponsored by the Company or any Subsidiary, is or has become the
"beneficial owner," as defined in rule 13d-3 under the Exchange Act, directly or
indirectly, of 25% or more of the combined voting power of the outstanding
securities of the Company ordinarily having the right to vote at the election of
directors, or
(ii) individuals who constitute the Board
immediately prior to any meeting of stockholders (the "Incumbent Board") have
ceased for any reason to constitute at least a majority thereof, provided that
any person becoming a director whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least three-quarters (3/4)
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director without objection to such nomination) shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or
(iii) upon approval by the Company's stockholders
of a reorganization, merger, share exchange or consolidation, other than one
with respect to which those persons who were the beneficial owners, immediately
prior to such reorganization, merger, share exchange or consolidation, or
outstanding securities of the Company ordinarily having the right to vote in the
election of directors own, immediately after such transaction, more than 75% of
the outstanding securities of the resulting corporation ordinarily having the
right to vote in the election of directors; or
(iv) upon approval by the Company's stockholders
of a complete liquidation and dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company other than
to a Subsidiary.
Notwithstanding the occurrence of any of the foregoing, the Board may
determine, if it deems it to be in the best interest of the Company and
consistent with a good faith interpretation of this Agreement, that an event or
events otherwise constituting a Change in Control shall not be so considered.
Such determination shall only be effective (A) if it is made by the Board prior
to
5
<PAGE> 6
the occurrence of an event that otherwise would be or probably will lead to
a Change in Control or after such event if made by the Board a majority of
which is composed of directors who were members of the Board immediately prior
to the event that otherwise would be or probably will lead to a Change in
Control and 75% or more of such directors vote in favor of such determination,
and (B) if it is made with respect to all executive officers of the Company.
Upon such determination, such event or events shall not be deemed to be a
Change in Control for any purposes hereunder.
6. Nondisclosure, Confidentiality; Competition.
(a) Employee agrees that, during the term of this Agreement
and of Employee's employment by the Company, and for a period twelve (12)
months after the termination of Employee's employment with the Company,
Employee will not in any manner, directly or indirectly, by himself or in
conjunction with any other person, (i) conduct any of the activities or perform
any of the responsibilities or duties that Employee provided the Company during
his employment by the Company for any business entity that is competitive with
the business of the Company or its affiliates or (ii) establish or own any
financial, beneficial or other interest in (other than an interest consisting
of less than one percent (1%) of a class of publicly traded security), make any
loan to or for the benefit of, or render any managerial, marketing or other
business advice, to any entity that is then conducting activities that are
competitive with those of the business of the Company or its affiliates, in
either case within a geographic territory defined as the greater of (i) a
seventy-five (75) mile radius of any renal dialysis center, unit or facility
owned or operated by the Company or an affiliate of the Company (an "RCG
Center"), or (ii) the geographic area, as narrowly construed as is practicable,
from which the Company received patients at each of the RCG Centers. For
purposes of this Section, the "business of the Company or its affiliates" shall
mean owning or operating a renal dialysis center, unit or facility, and
providing practice management services to nephrologists. However, any
Vanderbilt Medical Center owned dialysis operation is excluded from this
non-compete. Further, this Section is subject to Section 5(d) which specifies
that for the post employment non-compete described above to be effective,
Employee must have accepted the severance so described in Section 5d(i) or
(iii).
(b) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
will keep confidential and not directly divulge, or allow through a lack of
reasonable care to be divulged to anyone, or use or otherwise appropriate for
Employee's own benefit or for the benefit of others, any knowledge or
information of a confidential nature with respect to the Company's and its
affiliates' current business, the Company itself, or any of its affiliates,
including all trade secrets, pricing information, marketing information or
technical information (hereinafter referred to as the "Confidential Data"),
except for (i) a disclosure that is required by law; or (ii) information that
has been made generally available to the public by the act of one who has the
right to disclose such information; or (iii) information that has become part
of the public domain through no fault of the Employee; and (iv) was known to
the Employee prior to May 1, 1996. Employee hereby
6
<PAGE> 7
acknowledges and agrees that the prohibitions against disclosure of Confidential
Data recited herein are in addition to, and not in lieu of, any rights or
remedies which the Company may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of confidential
information, and the enforcement by the Company of its rights and remedies
pursuant hereto shall not be construed as a waiver of any other rights or
available remedies which the Company may possess in law or equity. Employee
acknowledges that the Company has taken reasonable and appropriate steps to
ensure the confidentiality and non-disclosure of all such Confidential Data.
For purposes of this Section the Company's and its affiliates' "current
business" shall mean owning or opening a renal dialysis center, unit or
facility.
(c) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
will not, for his own benefit or the benefit of others, solicit any person or
entity that has or has had, or disrupt or attempt to disrupt, any relationship,
contractual or otherwise, with the Company or an affiliate of the Company
(including any patient, payor, physician, provider, managed care organization
or supplier) at any time during Employee's employment with the Company, for the
purpose of assisting, or creating such a relationship for, any business entity
that is competitive with the Company or an affiliate of the Company. For
purposes of this Section, a business entity is competitive with the Company or
an affiliate of the Company if it provides or offers any renal dialysis service
that is provided by the Company or an affiliate of the Company.
(d) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
shall not induce, nor attempt to induce, any employee of the Company, or any of
its affiliates, to terminate such employee's association with the Company or
any of its affiliates.
(e) These post-employment covenants are considered by the
parties hereto to be fair, reasonable and integral for the protection of the
Company. The parties mutually agree that if a violation of any of these
covenants occurs, such violation or any threatened violation will cause
irreparable injury to the Company and the remedy at law for any such violation
or threatened violation will be inadequate. The parties acknowledge that these
covenants will survive, and remain in effect and enforceable after, termination
of this Agreement.
(f) Employee agrees to indemnify and hold harmless the
Company from and against any and all claims, causes of action, damages and/or
any other losses suffered or incurred by the Company as a result of any breach
or purported breach by Employee of any agreement applicable to Employee which
existed prior to the time of the entering into of this Agreement. Such
obligations of Employee to indemnify and hold the Company harmless shall
include any and all costs of defense of any such claim or threatened claim,
including reasonable attorneys' fees.
7
<PAGE> 8
7. Severability.
The parties hereto hereby expressly agree and contract that
it is not the intention of either party to violate any public policy, or any
statutory or common law, and that if any paragraph, sentence, clause or
combination of the same of this Agreement shall be in violation of the laws of
any state where applicable, such paragraph, sentence, clause or the combination
of the same shall be void in the jurisdictions where it is unlawful, and the
remainder thereof shall remain binding on the parties hereto. It is the
intention of the parties to make the covenants of this Agreement binding only
to the extent that they may be lawfully done under existing applicable laws. In
the event that any part of any term or covenant of this Agreement is determined
by a court of law or equity to be overly broad or otherwise unenforceable, the
parties hereto agree that such court shall be empowered to substitute, and it
is the intent of the parties hereto that such court substitute, a reasonably
judicially enforceable term or limitation in the place of such unenforceable
term or covenant, and that as so modified this Agreement shall be fully
enforceable.
8. Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior understandings or agreements, and any
changes or additions hereto must be in writing and signed by both parties.
9. Assignment.
(a) The rights and benefits of Employee under this Agreement,
other than accrued and unpaid amounts due under Section 3(a) hereof, are
personal to Employee and shall not be assignable.
(b) This Agreement may not be assigned by the Company except
to an affiliate of the Company, provided that such affiliate assumes the
Company's obligations under this Agreement; provided, further, that if the
Company shall merge or effect a consolidation or share exchange with or into,
or sell or otherwise transfer substantially all its assets to, another business
entity, the Company may assign its rights hereunder to that business entity
without the consent of the Employee provided that it causes such business
entity to assume the Company's obligations under this Agreement.
10. Notice.
The references to the notice periods of certain "days"
contained in this Agreement shall mean calendar days. Any notice provided for
in this Agreement shall be delivered to Employee at the most recent address of
employee listed in the Company's then current employment records. Notice to the
Company shall be delivered to the following address: c/o Renal Care Group,
Inc., 2100 West End Avenue, Suite 800, Nashville, Tennessee 37203,
8
<PAGE> 9
Attention: President.
11. Waiver.
The waiver by any party to this Agreement of a breach of any of the
provisions contained herein shall not operate or be construed as a waiver of
any subsequent breach.
12. Disputes and Governing Law.
The Company and employee agree that any dispute arising in connection
with, or relating to, this Agreement or the termination of this Agreement, to
the maximum extent allowed by applicable law, shall be subject to resolution
through informal methods and, failing such efforts, through arbitration. Either
party may notify the other party of the existence of a dispute by written
notice to the address indicated above in Section 10. The parties shall
thereafter attempt in good faith to resolve their differences within thirty
(30) days after the receipt of such notice. If the dispute cannot be resolved
within such 30-day period, either party may file a written demand for
arbitration with the other party. The arbitration shall proceed in accordance
with the terms of the Federal Arbitration Act and the rules and procedures of
the American Arbitration Association. A single arbitrator shall be appointed
through the American Arbitration Association's procedures to resolve the
dispute.
The parties agree that in the event arbitration is necessary, the laws
of the State of Tennessee and any applicable federal law shall apply. The place
of the arbitration shall be Nashville, Tennessee.
The award of the arbitrator shall be binding and conclusive upon the
parties. Either party shall have the right to have the award made the judgement
of a court of competent jurisdiction in the State of Tennessee.
9
<PAGE> 10
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement on the day and year first above written.
COMPANY:
RENAL CARE GROUP, INC.
By: /s/ Sam A. Brooks
-----------------------------
Sam A. Brooks
President
[Corporate Seal]
EMPLOYEE:
(Seal)
Raymond Hakim, M.D., Ph.D.
<PAGE> 1
Exhibit 10.2
AGREEMENT OF LEASE
DATED
APRIL 16TH, 1996
MADE BETWEEN
LOEWS NASHVILLE HOTEL CORP., LANDLORD,
AND
RENAL CARE GROUP, INC., TENANT
<PAGE> 2
TABLE OF CONTENTS OF AGREEMENT OF LEASE
DATED APRIL 16TH, 1996 MADE BETWEEN
LOEWS NASHVILLE HOTEL CORP., LANDLORD,
AND RENAL CARE GROUP, INC., TENANT
ARTICLE PAGE
1 Premises; Term...................................... 1
2 Rent................................................ 1
3 Delivery of Premises................................ 2
4 Tenant's Share of Excess Operating Expenses......... 2
5 Use of Premises..................................... 3
6 Tenant Alterations.................................. 3
7 Maintenance and Repairs............................. 5
8 [INTENTIONALLY OMITTED]............................. 6
9 Requirements of Law; Fire Insurance................. 6
10 Subordination....................................... 6
11 Tenant's Liability Insurance, Property Loss......... 7
12 Indemnification by Tenant........................... 8
13 Destruction, Fire and Other Casualty................ 9
14 Assignment, Mortgage, etc........................... 10
15 Access to Premises.................................. 10
16 Landlord's Right to Cure............................ 11
17 No Representations by Landlord...................... 11
18 End of Term......................................... 12
19 Quiet Enjoyment..................................... 12
20 No Waiver........................................... 12
21 Waiver of Trial by Jury............................. 12
22 Inability to Perform................................ 12
23 Adjacent Excavation--Shoring........................ 13
24 Utilities; Services................................. 13
25 Eminent Domain...................................... 14
26 Defaults and Remedies............................... 15
27 Parking............................................. 18
28 Captions............................................ 18
29 Definitions......................................... 18
30 Rules and Regulations............................... 18
31 Successors and Assigns.............................. 18
32 Hazardous Substances................................ 18
33 Broker.............................................. 19
34 Holding Over........................................ 19
35 Building Alterations and Management................. 20
36 Notices............................................. 20
37 Landlord's Lien..................................... 20
38 Mechanic's Liens.................................... 20
39 Late Charges........................................ 21
40 Miscellaneous Covenants............................. 21
41 Renewal............................................. 21
42 Option to Lease Additional Space.................... 22
EXHIBIT
"A" Premises............................................ 24
"B" Work Letter......................................... 25
"C" Rules and Regulations............................... 26
i.
<PAGE> 3
STANDARD FORM OF OFFICE LEASE
AGREEMENT OF LEASE, made as of this 16th day of April, 1996, between
LOEWS NASHVILLE HOTEL CORP., a Delaware corporation, having its principal place
of business at 667 Madison Avenue, New York, New York 10021-8087 (hereinafter
referred to as "Landlord"), and RENAL CARE GROUP, INC., a Delaware Corporation,
having its prin cipal office at 2100 West End Avenue, Nashville, Tennessee
37203 (hereinafter referred to as "Tenant").
The parties hereby agree as follows:
ARTICLE 1. PREMISES; TERM
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the office space known as SUITE 800 designated on the plan annexed
hereto and made a part hereof as EXHIBIT "A" (the "Premises") in the building
known as the LOEWS VANDERBILT PLAZA OFFICE BUILDING, located at 2100 West End
Avenue, Nashville, Tennessee 37203 (the "Building"). Tenant acknowledges that
the plan attached as EXHIBIT "A" has not been drawn to scale and that such plan
is subject to change.
1.2 The term of this Lease shall be for a period of SIX (6) years or
until such term shall sooner cease and expire as here inafter provided (the
"Lease Term"). The Lease Term shall commence on JUNE 1, 1996 (the "Commencement
Date") and shall end at midnight on MAY 31, 2002.
1.3 As used in this Lease, "Lease Year" shall mean each twelve (12)
calendar month period between January 1st and December 31st of each year during
the Lease Term, except that the first Lease Year shall mean the period
commencing on the Commencement Date and ending on December 31st of such Lease
Year.
ARTICLE 2. RENT
2.1 Tenant shall pay rent consisting of a Base Rent and additional
rent, which Tenant agrees to pay in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, in
monthly installments in advance on the first day of each month during the Lease
Term with respect to Base Rent, at the office of Landlord, or such other place
as Land lord may designate, without any set-off or deduction whatsoever. If the
Commencement Date falls on a date other than the first of the month, the rent
for such month shall be prorated and adjusted accordingly.
2.2 During the term of this Lease, the Base Rent payable by
Tenant shall be as follows:
(a) $188,352.00 for the period from JUNE 1, 1996
through MAY 31, 1997, payable $15,696.00 per month;
(b) $198,816.00 for the period from JUNE 1, 1997
through MAY 31, 1998, payable $16,568.00 per month;
(c) $198,816.00 for the period from JUNE 1, 1998
through MAY 31, 1999, payable $16,568.00 per month;
(d) $209,280.00 for the period from JUNE 1, 1999
through MAY 31, 2000, payable $17,440.00 per month;
(e) $219,744.00 for the period from JUNE 1, 2000
through MAY 31, 2001, payable $18,312.00 per month; and
(f) $230,208.00 for the period from JUNE 1, 2001 through MAY
31, 2002, payable $19,184.00 per month.
2.3 "Additional rent" shall consist of Tenant's Share of
Excess Operating Expenses as described in Article 4. Any other
charges or payments due Landlord from Tenant pursuant to the terms
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of this Lease shall also be deemed "additional rent" hereunder. For the
non-payment of any additional rent or other charges due Landlord pursuant to
the terms of this Lease, Landlord shall have the same rights and remedies that
Landlord has for the non-payment of the Base Rent.
ARTICLE 3. DELIVERY OF PREMISES
3.1 Tenant agrees to take the Premises in their "As Is" condition on
the Commencement Date, unless Landlord has agreed to construct improvements to
the Premises, as hereinafter provided.
3.2 Landlord has agreed to construct improvements to the Premises (the
"Tenant Improvements") in accordance with the plans and specifications annexed
hereto as EXHIBIT "B" (the "Plans and Specifications"). In connection with
construction of such Tenant Improvements, Landlord has agreed to incur costs
not to exceed $83,712 (the "Construction Cost"). In no event shall Landlord be
obligated to expend in excess of $83,712 for the Tenant Improve ments. In the
event Tenant Improvements require an expenditure in excess of $83,712, Tenant
agrees that such excess shall be borne by Tenant. For purposes hereof, the term
"Construction Cost" shall include the development of the Plans and
Specifications and related design costs. Following the date upon which the
Tenant Improve ments have been substantially completed in accordance with the
Plans and Specifications, Landlord shall deliver possession of the Premises and
the Commencement Date shall commence on the earlier to occur of (i) the date on
which Tenant takes possession of the Premises or (ii) twenty-four (24) hours
following the date on which a certificate of occupancy is issued by the
Metropolitan Government of Nashville and Davidson County Buildings Department
for occupancy of the Premises. The taking of possession by Tenant shall
conclusively establish that improvements to the Premises have been completed in
accordance with the Plans and Specifications, and that the Premises are in good
and satisfactory condition at the time possession is taken. Unless otherwise
specified in the Plans and Specifications, all materials used in the
construction of the Premises shall be Landlord's standard items used with
respect to the Building.
3.3 If Landlord is unable to give possession of the Premises on the
date of commencement of the Lease Term hereof, because of the holding-over or
retention of possession of any tenant, under tenant or occupants or if the
Premises are located in a building being constructed, because such building has
not been sufficiently completed to make the Premises ready for occupancy or
because of the fact that a certificate of occupancy has not been procured or
for any other reason, Landlord shall not be subject to any liabil ity for
failure to give possession on said date and the validity of the Lease shall not
be impaired under such circumstances, nor shall the same be construed in any
wise to extend the Lease Term, but the rent payable hereunder shall be abated
(provided Tenant is not responsible for Landlord's inability to obtain
possession) until after Landlord shall have given Tenant written notice that
the Premises are substantially ready for Tenant's occupancy. If per mission is
given to Tenant to enter into the possession of the Premises or to occupy
premises other than the Premises prior to the date specified as the
Commencement Date, Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
Lease, except as to the covenant to pay rent. Notwithstanding anything herein
to the contrary, in the event Landlord has not commenced construction of the
Premises by June 1, 1996, and provided any such delays were not caused by
delays beyond Landlord's reasonable control, then Tenant may cancel this Lease
upon notice in writing to Landlord, and neither party shall have any further
obligation to the other.
ARTICLE 4. TENANT'S SHARE OF EXCESS OPERATING EXPENSES
4.1 During the Lease Term (including any renewals), Tenant shall pay
to Landlord, as additional rent, a sum equal to Tenant's Share of Excess
Operating Expenses (as such term is hereinafter defined) in connection with
operating, maintaining, repairing, managing and owning the Building and the
Common Areas of the Loews
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Vanderbilt Plaza building complex. "Tenant's Share of Excess Operating
Expenses" shall be calculated on the basis of any excess Operating Expenses for
a particular Lease Year over actual Operating Expenses for calendar year 1996
(the "Base Year"). For purposes of this Section, "Tenant's Share" shall be
deemed to be percent (8.15%). The calculation of Tenant's Share is based upon
the ratio of the approximate square footage of the Premises (10,464) to the
approximate square footage of the Building (127,162). The numbers given in the
preceding sentence do not represent accurate measurements of the square footage
contained in the Premises or the Building but are mere estimates for purposes
of calculating "Tenant's Share" hereunder. Tenant's Share of Excess Operating
Expenses shall not be increased by more than five percent (5%) in any Lease
Year as compared to Tenant's Share of Excess Operating Expenses for the
previous Lease Year.
4.2 Landlord shall have the option of (a) collecting such additional
rent on an annual basis after determining Operating Expenses for the most
current Lease Year, or (b) making a good faith estimate of Operating Expenses
for each upcoming Lease Year and billing Tenant for additional rent on a
monthly basis in accordance with such estimate, in which event Tenant's Share
of Excess Operating Expenses shall be paid in equal monthly install ments in
advance on the first day of each month in the manner provided for the payment
of Base Rent. Any sums based on Landlord's estimate of Operating Expenses shall
be subject to adjustment when actual Operating Expenses are available for such
Lease Year.
4.3 By April 1st of each calendar year during Tenant's occu pancy of
the Premises, or as soon thereafter as practical, Landlord shall furnish to
Tenant a statement of Landlord's actual Operating Expenses for the previous
Lease Year. The first such statement shall include a comparison with actual
Operating Expenses for the Base Year. If, for any Lease Year, as a result of
Landlord's estimate of Operating Expenses, additional rent collected for the
prior year is in excess of additional rent actually due during such prior year,
then Landlord shall refund to Tenant any overpayment, provided Tenant is not in
default of any of the terms and provisions of this Lease. Tenant shall pay to
Landlord any under payment with respect to the prior year immediately following
demand.
ARTICLE 5. USE OF PREMISES
The Premises shall be used for executive office and administrative
offices of a health care service company and for no other purpose. Tenant
agrees that in the use and occupancy of the Premises and in the conduct of its
business therein, Tenant will comply with the requirements of all laws,
ordinances, orders and regulations of the federal, state, county and municipal
authorities now in force, or which hereinafter may be enforced. Tenant will
not, at any time, use or occupy the Premises in violation of the certificate of
occupancy issued for the Building.
ARTICLE 6. TENANT ALTERATIONS
6.1 Tenant shall make no changes or alterations in or to the Premises
of any nature, nor shall Tenant make any changes to any plans and
specifications approved by Landlord, without the prior written consent of
Landlord in each instance, which consent may be withheld for any reason or for
no reason. Notwithstanding the foregoing, in the event Tenant desires to make
non-structural alterations to the Premises, the aggregate cost of which would
not exceed $5,000, Landlord's consent to any such alterations shall not be
unreasonably withheld. In connection with any work performed on or to the
Premises by or on behalf of Tenant during the Lease Term, Tenant shall, at
Tenant's expense, comply with the provisions of each and every one of the
subsections set forth below. Prior to the commencement of any such work, Tenant
shall:
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(a) submit to Landlord, for Landlord's written approval,
complete working plans and specifications for the work to be
done by Tenant;
(b) submit to Landlord, for Landlord's written approv al, the
names of Tenant's proposed general contractor and major subcontractors (it
being understood that, in connection with any such approval, Landlord shall
have the right to require that payment and performance by the general
contractor be bonded);
(c) obtain the necessary consents, authorizations and
licenses from the federal, state and/or municipal authorities having
jurisdiction over the work to be done, and no work shall be started or
equipment installed unless and until all such necessary consents,
authorizations and licenses shall have first been duly obtained by Tenant
and/or Tenant's contractors or other persons doing the work or installing the
equipment on behalf of Tenant;
(d) comply with such laws, orders, ordinances and regulations
of federal, state county and municipal authorities with respect to such
alterations, including without limitation, the requirements of Title III of the
Americans with Disabilities Act of 1990;
(e) deliver to Landlord certificates of Worker's Compensation
Insurance indicating that Tenant or any contractor employed by Tenant or any
other persons who do any work or install any equipment in the Premises shall be
fully covered by Worker's Compensation Insurance; and
(f) deliver to Landlord Certificates of Insurance evi dencing
the insurance described in Section 6.3 hereof, containing the agreement of the
insurance company issuing such Certificates that ten (10) days' written notice
of any material policy change or cancellation, shall be furnished to Landlord.
(g) ten (10) days prior to the commencement of any work,
deliver to Landlord a notice stating the date the installa tion of the
alterations is to commence so that Landlord can post and record appropriate
notices of non-responsibility.
6.2 All work performed by or on behalf of Tenant in the Premises shall
be subject at all times to inspection by Landlord and shall be conducted in
such manner as not to disturb the opera tion of the Building or any of its
tenants. Any approval or super vision which Landlord may exercise pursuant to
the terms hereof shall not in any manner be deemed or construed to constitute
Land lord as a general contractor in connection with the work performed by or
on behalf of Tenant and shall not be deemed or construed to impose any
liability or responsibility upon Landlord for such work or the manner or
performance thereof. Said work shall be performed and completed by Tenant in
strict accordance with plans and speci fications approved by Landlord and the
city, state or federal authorities having jurisdiction over such work. Upon
completion of such work, Tenant shall obtain any and all required approvals
from such city, state or federal authorities. No approval by Landlord of any
plans and specifications submitted by Tenant should be con strued as a
representation or warranty of any kind that the Prem ises or the mechanical,
electrical or plumbing facilities of said Premises are suitable for Tenant's
purposes. Promptly after the completion of all work, Tenant shall obtain from
each contractor who worked at the Premises and each vendor who supplied
materials and/or equipment thereto, a waiver of lien certifying the amount of
and full payment for the charges for the services, equipment or materials
supplied. Tenant shall furnish Landlord with copies of such lien waivers,
together with Tenant's affidavit containing a list of all such contractors and
vendors and Tenant's statement that all payments have been made as required.
6.3 Tenant, at Tenant's sole cost and expense, agrees to provide and
maintain during the course of any work performed in the Premises (in addition
to the insurance required by Section 11.2 hereof), comprehensive public
liability insurance with a company approved by Landlord (which approval shall
not be unreasonably
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withheld or delayed) providing for limits of not less than $1,000,000 per
occurrence combined single limit for personal injury including death and for
property damage. Such insurance shall name Landlord and its affiliates as
additional insureds and shall include blanket contractual liability.
6.4 Tenant agrees to indemnify, defend and hold Landlord and its
affiliates harmless from any and all claims, by or through any person,
including but not limited to Tenant's and/or contractors' employees, agents or
servants, and for any property damage, including Tenant's and/or contractors'
property, which results from or is in any way connected with work to be
performed for Tenant in/or about the Premises.
6.5 All installations and fixtures of every kind (except Tenant's
trade fixtures, moveable office furniture and equipment) installed in the
Premises at any time either by Tenant or by Landlord on Tenant's behalf shall
upon installation become the property of Landlord and shall remain upon and be
surrendered with the Premises unless Landlord, by notice to Tenant, at least
twenty (20) days prior to end of the Lease, elects to relinquish ownership and
have them removed by Tenant, in which event, the installation shall be removed
from the Premises by Tenant prior to the expiration of the Lease, at Tenant's
expense. Upon removal of any installations as may be required or permitted by
Landlord, Tenant shall immediately and at Tenant's expense, repair and restore
the Premises to the condition existing prior to installation and repair any
damage to the Premises or the Building due to such removal. Throughout the
Lease Term, all improvements, installations or fixtures in the Premises shall
remain free and clear of all liens and encumbrances, title retention
agreements, security agreements, chattel mortgages and/or conditional sale
agreements or purchase money liens.
ARTICLE 7. MAINTENANCE AND REPAIRS
7.1 Tenant shall, throughout the term of this Lease, take good care of
the Premises and the fixtures and appurtenances therein, and at Tenant's sole
cost and expense, make all repairs thereto as and when needed to preserve them
in good condition. Landlord's repair obligations under this Lease are limited
solely to structural repairs to the Premises. However, if the necessity for
such repairs is the result of the negligence of Tenant, Tenant's invitees,
licensees, employees or agents, Tenant shall bear the cost of such structural
repairs. Tenant shall also repair any damage to the Building and the Building
systems and equipment caused or resulting from the negligence or improper
conduct of Tenant, Tenant's invitees, licensees, agents or employees, or which
arise out of any work, labor, service or equipment done for or supplied to
Tenant or caused by the moving of Tenant's fixtures, furniture and equipment
into or out of the Premises and/or the Building.
7.2 Landlord shall be responsible for maintaining the exterior and
structural portions of the Building and the Common Areas. Landlord shall also
maintain the plumbing, electrical, heating and ventilation systems serving the
Premises and the Common Areas. There shall be no set-off or reduction in rent
allowed to Tenant by reason of any failure of Landlord to comply with the
provisions of this Section of the Lease and there shall be no allowance to
Tenant for the diminution of rental value and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord or others making or failing to make any repairs, alterations,
additions or improvements in or to any portion of the Building including the
erection or operation of any crane, derrick or sidewalk shed, or in or to the
Premises or the fixtures, appurtenances or equipment thereof.
7.3 The provisions of this Article 7 with respect to the making of
repairs shall not apply in the case of fire or other casualty which are dealt
with in Article 13 hereof.
ARTICLE 8. SECURITY DEPOSIT
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[INTENTIONALLY OMITTED]
ARTICLE 9. REQUIREMENTS OF LAW; FIRE INSURANCE
Prior to the commencement of the Lease Term, if Tenant is then in
possession of the Premises, and at all times thereafter, Tenant at Tenant's
sole cost and expense, shall promptly comply with all present and future laws,
orders and regulations of all state, federal, municipal and local government,
departments, commissions and boards and any direction of any public officer
pursuant to law, and all orders, rules and regulations of the applicable Board
of Fire Underwriters or the Tennessee Insurance Commissioner or any similar
body which shall impose any violation, order or duty upon Landlord or Tenant
with respect to the Premises, and arising out of Tenant's use or manner of use
of the Premises or the Building (including the use permitted under the Lease).
Nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has by its manner of use of the Premises or method of operation
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant shall not do or permit any act or
thing to be done in or to the Premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies of
insurance at any time carried by or for the benefit of Landlord. Tenant shall
pay all costs, expenses, fines, penalties or damages, which may be imposed upon
Landlord by reason of Tenant's failure to comply with the provisions of this
Article 9. If the fire insurance rate shall, at the beginning of the Lease or
at any time thereafter, be higher than it otherwise would be by reason of
Tenant's failure to comply with its obligations hereunder, then Tenant shall
reimburse Landlord, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Landlord which shall have been charged
because of such failure by Tenant to comply with the terms of this Article. In
any action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make-up" of rates for the Building or Premises issued by a body making fire
insurance rates applicable to said Premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to said Premises. Tenant shall not place a load upon any
floor of the Premises exceeding the floor load per square foot area which it
was designed to carry and which is allowed by law. Landlord reserves the right
to prescribe the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance.
ARTICLE 10. SUBORDINATION
10.1 It is understood and agreed that this Lease is and shall be
subject and subordinate, in all respects, to all ground and underlying leases
and to all present and future mortgages and trust indentures which may now or
hereafter be placed on or affect the land, the Building or the building complex
of which the Building is part, or any part or parts thereof and/or Landlord's
interest or estate therein, and to each advance made or to be made under any
such mortgages and/or trust indentures, and to all renewals, modi fications,
consolidations, replacements and extensions thereof, and all substitutions
therefore. This Section 10.1 shall be self-operative and no further instrument
of subordination shall be required. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord, and/or any present
or future mortgagee or trustee, and/or any lessor under any present or future
ground or underlying lease, and/or their respective successors in interest, may
request in writing within ten (10) days of such request. If Tenant fails to
deliver any such certificate to Landlord within said ten-day period, Tenant
hereby constitutes and appoints Landlord, and/or any present or future
mortgagee or trustee, and/or any lessor under any present or future ground or
underlying lease, and/or their respective successors in interest, the Tenant's
attorney-in-fact coupled with an interest to execute and deliver any such
certificate or certificates for and on behalf
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of Tenant. Without limiting, restricting or affecting the forego ing, Landlord
agrees to use reasonable efforts to obtain a non-disturbance agreement from any
future mortgagee in favor of Tenant.
10.2 Tenant agrees not to violate any of the terms, covenants and
conditions of any ground or underlying leases, mortgages, trust indentures or
license agreements which may now or hereafter be placed upon or affect the
Building or any part or parts thereof of which Tenant has written notice. If
any act or omission of Tenant should constitute a violation of the terms of any
such mortgage, ground lease, trust indenture or license agreement, Landlord
shall so notify Tenant, and promptly following receipt of Landlord's notice
(but in no event more than five (5) days thereafter), Tenant shall cure the
violation specified in Landlord's notice.
10.3 If, at any time during the Lease Term, Landlord shall be the
holder of a leasehold estate covering the Building, or if Landlord shall grant
a mortgage covering the Building, and if such leasehold estate shall terminate
or be terminated for any reason, or if such mortgage is foreclosed for any
reason, or a deed in lieu of foreclosure granted to a mortgagee, Tenant agrees,
at the election and upon demand of any owner of premises which include the
Premises, or of a mortgagee in possession thereof, or of any holder of a
leasehold hereafter affecting premises which include the Prem ises, to attorn,
from time to time, to any such owner, mortgagee or holder, upon the terms and
conditions set forth herein, for the remainder of the Lease Term. The foregoing
provisions shall enure to the benefit of any such owner, mortgagee or holder,
shall apply to the tenancy of Tenant, notwithstanding that this Lease may
terminate upon the termination of any such leasehold estate, or upon any
foreclosure of a mortgage or granting of a deed in lieu of foreclosure to a
mortgagee, and shall be self-operative upon any such demand, without requiring
any further instrument to give effect to said provisions. Tenant, however, upon
demand of any such owner, mortgagee or holder, agrees to execute, from time to
time, an instrument in confirmation of the foregoing provisions, satisfactory
to such owner, mortgagee or holder, in which Tenant shall acknowledge such
attornment, and shall set forth the terms and conditions of its tenancy, which
shall be the same as those set forth herein and shall apply for the remainder
of the term origi nally demised by this Lease. Nothing contained in this
Section 10.3 shall be construed to impair any right, privilege or option of any
such owner, mortgagee or holder.
10.4 From time to time, within ten (10) days following Land lord's
request, Tenant shall deliver to Landlord a written state ment executed and
acknowledged by Tenant, in form satisfactory to Landlord, (a) acknowledging
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth the specific nature of all modifications), (b)
setting forth the date to which the Base Rent and all additional rent has been
paid, (c) stating whether or not, to the best knowledge of Tenant, Landlord is
in default under this Lease, and, if Landlord is in default, setting forth the
specific nature of such default, and (d) any other matters reasonably requested
by Landlord. Tenant acknowledges that any statement delivered pursuant to this
Section 10.4 may be relied upon by any purchaser or subsequent owner of the
Building (or the building complex of which the Building is part) or Landlord's
interest in the Building (or the building complex of which the Building is
part), or any ground or underlying lease, or by any mortgagee, or by any
assignee of any mortgagee, or by any lessee under any ground or underlying
lease.
ARTICLE 11. TENANT'S LIABILITY INSURANCE, PROPERTY LOSS
11.1 Landlord and its agents, servants or employees shall not be liable
for any damage to property of Tenant or of others entrusted to employees of the
Building, nor for loss of or damage to any property of Tenant by theft or
otherwise, nor for any injury or damage to persons or property resulting from
any cause of whatsoever nature, unless caused by or due to the negligence of
Landlord or its agents, servants or employees. Landlord and its agents will not
be liable for any such damage caused by other ten ants or persons in, upon or
about said Building or caused by opera-
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tions in construction of any private, public or quasi-public work.
11.2 Tenant, at Tenant's own cost and expense, agrees to provide and
maintain, at all times during the term of this Lease, the following insurance:
(a) Comprehensive public liability insurance covering
claims brought anywhere in the world, naming Landlord and its affiliates as
additional insureds, providing for limits of not less than $1,000,000 combined
single limit for personal injury, includ ing death, and property damage
including products liability and blanket contractual liability;
(b) Fire and extended insurance in amounts deemed
necessary by Tenant covering Tenant's property in the Premises for
the full replacement value thereof. Such policies shall contain a
waiver of subrogation provision in favor of Landlord;
(c) Worker's Compensation Insurance as required by law
and Employer's Liability Insurance with coverage of not less than
$500,000; and
(d) Rent insurance in favor of Landlord against loss of
rent or rental value due to fire or other casualty, providing for coverage of
Base Rent and all additional rent due under this Lease for the term hereof,
which insurance shall include an extended coverage endorsement.
During the period of any construction of improvements by Tenant on the
Premises, Tenant shall require its general contractor and all subcontractors to
provide the insurance coverage indicated in subsections (a) and (c) above.
11.3 All of the foregoing insurance shall be obtained from a company
or companies authorized to do business in the State of Tennessee and approved
by Landlord, which approval shall not be unreasonably withheld or delayed, and
a certificate evidencing the issuance of such policy or policies of insurance
shall be delivered to Landlord before the commencement of the term of this
Lease. Not less than ten (10) days prior to the expiration of any such policy
or policies, evidence of the renewal of such policy or policies, or a new
certificate, as the case may be, shall be delivered to Landlord. All such
insurance shall contain an agreement by the insurance company that the policy
or policies will not be canceled, or the coverage changed, without ten (10)
days' prior written notice to Landlord. On Tenant's default in obtaining or
delivering any such policy or policies or failure to pay the charges therefore,
Landlord may secure or pay the charges for any such policy or policies and
charge the Tenant as additional rent therefore. Tenant's liability under this
Lease extends to the acts and omissions of any subtenant, and any agent,
contractor, employee, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Landlord by reason of any such claim, Tenant,
upon written notice from Landlord, will, at Tenant's expense, resist or defend
such action or proceeding by counsel approved by Landlord in writing, such
approval not to be unreasonably withheld.
ARTICLE 12. INDEMNIFICATION BY TENANT
Tenant agrees to indemnify, defend and save harmless Landlord and its
affiliates, from and against any and all liability, loss, damage, expenses,
costs of action, suits, interest, fines, penalties, claims and judgments
arising from injury, or claim of injury, during the term of this Lease to
person or property of any and every nature and from any matter or thing growing
out of the occupation, possession, use, management, improvement, alteration or
control of the Premises or any part thereof by Tenant, Tenant's agents,
contractors, employees, invitees or licensees, including the fixtures and
appurtenances therein during the term of this Lease, or arising out of Tenant's
failure to perform fully and promptly each and every covenant, term, condition
and agreement herein provided (whether or not this Lease shall contain other
specific indemnity provision with respect to such covenant, term,
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condition or agreement) to be performed by Tenant; provided, however, that
Tenant's indemnity shall not apply to claims arising solely from Landlord's
negligence or willful misconduct.
ARTICLE 13. DESTRUCTION, FIRE AND OTHER CASUALTY
13.1 If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth.
13.2 If the Premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by
and at the expense of Landlord and the rent, until such repair shall be
substantially completed, shall be appor tioned from the day following the
casualty according to the part of the Premises which is usable.
13.3 If the Premises are totally damaged or rendered wholly unusable
by fire or other casualty, then the rent shall be proportionately paid up to
the time of the casualty and thenceforth shall cease until the date when the
Premises shall have been repaired and restored by Landlord, subject to
Landlord's right to elect not to restore the same as hereinafter provided.
Landlord shall notify Tenant of its election to restore the Premises within
three (3) months following the date of the casualty.
13.4 If the Premises are rendered wholly unusable or (whether or not
the Premises are damaged in whole or in part) if the Building shall be so
damaged that Landlord shall decide to demolish it or to rebuild it, then, in
any of such events, Landlord may elect to terminate this Lease by written
notice to Tenant given within ninety (90) days after such fire or casualty
specifying a date for the expiration of the Lease, and upon the date specified
in such notice the term of this Lease shall expire as fully and completely as
if such date were the date set forth above for the termination of this Lease
and Tenant shall forthwith quit, surrender and vacate the Premises without
prejudice, however, to Landlord's rights and remedies against Tenant under the
Lease provisions in effect prior to such termination, and any rent owing shall
be paid up to such date (subject to any rent abatement to which Tenant may be
entitled pursuant to Section 13.3) and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned
to Tenant. Unless Landlord shall serve a termination notice so provided for
herein, Landlord shall make the repairs and restorations under the conditions
of Sections 13.2 and 13.3 above, with all reasonable expedition subject to
delays due to adjustment of insurance claims, labor troubles and causes beyond
Landlord's control. After any such casualty, Tenant shall cooperate with
Landlord's restoration by removing from the Premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five
(5) days after written notice from Landlord that the Premises are substantially
ready for Tenant's occupancy.
13.5 If the Premises are rendered wholly unusable, and if Landlord
does not complete restoration of the Premises within six (6) months following
the date of the casualty, then (unless otherwise mutually agreed by the
parties), Tenant shall have the option to terminate this Lease upon thirty (30)
days' prior written notice to Landlord (provided such notice is delivered to
Landlord prior to Landlord's commencing and diligently pursuing any such
restoration or repairs of the Premises).
13.6 Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other
casualty. Notwithstanding the foregoing, each party shall look
first to any insurance in such party's favor before making any claim against
the other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible and
to the extent permitted by law, Landlord and Tenant each hereby releases and
waives all right of recovery against the other or any one claiming through or
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under each of them by way of subrogation or otherwise. Tenant acknowledges that
Landlord will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improve ments, or appurtenances removable by Tenant
and agrees that Land lord will not be obligated to repair any damage thereto or
replace the same. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to Tenant's business resulting, in any way, from
damage to the Premises or the Building by fire or other casualty, or the repair
thereof. If any damage to the Premises or the Building from fire or other
casualty results from the negligence or willful misconduct of Tenant or its
employees, agents or invitees, directly or indirectly, there shall be no
abatement of the Base Rent or any additional rent.
13.7 Notwithstanding the foregoing, Landlord shall not have any
obligation whatsoever to repair, reconstruct or restore the Premises when the
insurance available to Landlord is not sufficient to cover the cost of such
repair, reconstruction or restoration.
ARTICLE 14. ASSIGNMENT, MORTGAGE, ETC.
14.1 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns expressly
covenants that it shall not assign, mortgage or encumber this Lease nor
underlet, or suffer or permit the Premises or any part thereof to be used by
others, without the prior written consent of Landlord in each instance.
Landlord may withhold or grant its consent to any assignment or sublease of the
Premises proposed by Tenant in Landlord's sole discretion. With respect to any
proposed subtenant or assignee, Landlord shall have the right to approve the
form and substance of any sublease or assignment documents. In the event of any
proposed acquisition of a majority of the corporate stock of Tenant by any
corporation, person or entity, Landlord's consent shall not be required,
provided that Tenant shall notify Landlord at least thirty (30) days prior to
any such proposed acquisition and shall forward to Landlord such detailed
information about the proposed transaction as Landlord may reasonably require.
No assignment, subletting or other transfer consented to by Landlord shall
relieve Tenant of any liability under this Lease.
14.2 If this Lease be assigned, or if the Premises or any part thereof
be underlet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions of this Article, or the acceptance of the assignee, undertenant
or occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment or underletting shall not in any wise be construed to
relieve Tenant from obtaining the express consent in writing of Landlord to any
further assignment or underletting.
ARTICLE 15. ACCESS TO PREMISES
Landlord or its agents shall have the right (but shall not be
obligated) to enter the Premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements
and improvements as Landlord may deem necessary and reasonably desirable in the
Premises or to any other portion of the Building or which Landlord may elect to
perform in the Premises or any other portion of the Building, or for the
purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Landlord to use and maintain and
replace pipes and conduits in and through the Premises and to erect new pipes
and conduits therein, provided they are within the walls, floors or ceilings.
Landlord may, during the progress of any work in the Premises, take all
necessary materials and equipment into said Premises without the same
constituting an eviction nor shall Tenant be entitled to any abatement of rent
while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Landlord shall attempt
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to minimize interruption of Tenant's business operations, but Tenant recognizes
the requirements of operating the Building will be paramount. Throughout the
Lease Term, Landlord shall have the right to enter the Premises at reasonable
hours for the purpose of showing the same to prospective purchasers or
mortgagees of the Building, and during the last six (6) months of the term for
the purpose of showing the same to prospective tenants. If Tenant is not
present to open and permit entry into the Premises, Landlord or its agents may,
to the extent not prohibited by law, enter the same whenever such entry may be
necessary or permissible by master key or forcibly, provided reasonable care is
exercised to safeguard Tenant's property, and such entry shall not render
Landlord or its agents liable therefore, nor in any event shall the obligations
of Tenant hereunder be affected. If, during the last month of Lease Term,
Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may immediately enter, alter, renovate or redecorate the
Premises without limitation or abatement of rent or incurring liability to
Tenant for any compensation and such act shall have no effect on this Lease or
Tenant's obligations hereunder.
ARTICLE 16. LANDLORD'S RIGHT TO CURE
If Tenant shall, at any time, fail to make any payment or shall fail
to keep and perform any act on the Tenant's part to be kept and performed as in
this Lease provided, Landlord may, but shall not be obligated to, make any such
payment or perform any such act on the Tenant's part to be kept and performed,
provided it shall first have given Tenant fifteen (15) days' written notice
with respect to any act required to be performed by the Tenant other than the
payment of money, and if Landlord makes any expendi tures or incurs any
obligations for the payment of money, all sums so paid by Landlord and costs
and expenses incurred by Landlord with respect thereto together with interest
thereon at a rate equal to the Prime Rate announced, from time to time, by
Citibank, N.A., plus two percent (2%), but in no event greater than the legal
maxi mum rate per annum, shall constitute additional rent payable by Tenant
under this Lease and shall be paid by Tenant to Landlord within three (3) days
after demand therefore. If Tenant's Lease Term shall have expired at the time
of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Landlord as damages.
ARTICLE 17. NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor Landlord's agents have made any represen tations
or promises with respect to the physical condition of the Premises, the
Building, the land upon which the Building is erected, or the rents, leases,
expenses of operation, or any other matter or thing affecting or related to the
Premises except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant by implication or otherwise accept as expressly
set forth in the provisions of this Lease. Tenant has inspected the Premises
and is thoroughly acquainted with their condition, and agrees to take the same
"As Is" (subject to the construction of Tenant Improvements to be undertaken by
Landlord in accordance with the Plans and Specifications annexed hereto as
EXHIBIT "B") and acknowledges that the taking of possession of the Premises by
Tenant shall be conclusive evidence that the said Premises were in good and
satisfactory condition at the time such possession was so taken. All
understandings and agreements hereto fore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Landlord and Tenant and any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of it in whole or in part, unless such executory agree ment is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
ARTICLE 18. END OF TERM
Upon the expiration or other termination of the Lease Term, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, ordinary wear excepted, and
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Tenant shall remove all of Tenant's property. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
Lease. If the last day of the term of this Lease or any renewal thereof falls
on Sunday, this Lease shall expire at noon on the preceding Saturday unless it
be a legal holiday in which case it shall expire at noon on the preceding
business day.
ARTICLE 19. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant paying the
rent and additional rent and observing and performing all the terms, covenants
and conditions, on Tenant's part to be observed and performed, Tenant may
peaceably and quietly enjoy the Premises hereby demised, subject, nevertheless,
to the terms and conditions of this Lease, and to any ground leases, underlying
leases and mortgages hereinbefore mentioned.
ARTICLE 20. NO WAIVER
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 or of
any of the Rules or Regulations set forth or hereafter adopted by Landlord,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Landlord of rent with knowledge of the breach of any covenant of
this Lease shall not be deemed a waiver of such breach and no provision of this
Lease shall be deemed to have been waived by Landlord unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorse
ment or statement of any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided or available at law. No act or thing done by
Landlord or Landlord's agents during the term hereby demised shall be deemed an
acceptance of a surrender of said Premises and no agreement to accept such
surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or Landlord's agent shall have any power to accept the keys to the
Premises prior to the termination of the Lease and the delivery of keys to any
such agent or employee shall not operate as a termination of the Lease or a
surrender of the Premises.
ARTICLE 21. WAIVER OF TRIAL BY JURY
It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
Premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for possession of the Premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding including
a counterclaim under Article 7 (Maintenance & Repairs).
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ARTICLE 22. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant
to be performed shall not be affected, impaired or excused because Landlord is
unable to fulfill any of its obligations under this Lease, or to supply or is
delayed in supplying any service expressly or impliedly to be supplied, or is
unable to make or is delayed in making any repair, additions, alterations or
decorations, or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles, government preemption in connection with a national
emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency, or
when, in the judgment of Landlord, temporary interruption of such services is
necessary by reason of accident, mechanical breakdown, or in order to make
repairs, alterations or improvements.
ARTICLE 23. ADJACENT EXCAVATION--SHORING
If an excavation shall be made upon land adjacent to the Prem ises, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the Premises for the
purpose of doing such work as said person shall deem necessary to preserve the
wall or the Building of which Premises form a part from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
ARTICLE 24. UTILITIES; SERVICES
24.1 The Premises shall be serviced by Landlord's heating,
air-conditioning and ventilating system during regular business hours without
additional cost to Tenant. If Tenant requires heat, air conditioning or
ventilation before 7:00 a.m. or after 7:00 p.m. on a weekday, or before 8:00
a.m. or after 1:00 p.m. on Saturdays, or at any time on Sundays or holidays,
Landlord shall furnish such additional services at rates to be determined by
Landlord from time to time to be charged to Tenant as additional rent.
24.2 Landlord shall also furnish electricity and water to the
Premises. The cost of such services is included in Landlord's Operating
Expenses for the Building. In the event Landlord determines that Tenant uses or
consumes water or electricity in unusual quantities, Landlord may install a
meter measuring the consumption of such service in the Premises, which Tenant
shall maintain in good working order and repair, and Tenant shall pay for the
cost of such service directly to the utility company.
24.3 Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the Building or
the risers or wiring installation and Tenant may not use any electrical
equipment which, in Landlord's opinion, reasonably exercised, will overload
such installations or interfere with the use thereof by other tenants of the
Building. The change at any time of the character of electric service shall in
no wise make Landlord liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
24.4 Landlord shall not be responsible if the normal operation of the
air-conditioning system shall fail to provide condi tioned air at reasonable
temperatures, pressures or degrees of humidity or in reasonable volumes or
velocities, in any portions of the Premises (a) which by reason of any
machinery installed by or on behalf of Tenant or any person claiming through or
under Tenant, shall have an electrical load in excess of the load, or which
shall have a human occupancy factor in excess of the human occupancy factor for
which the air-conditioning system is designed; or (b) because of any
rearrangement of partitioning or other alterations made or performed by or on
behalf of Tenant. Whenever said air-conditioning system is in operation,
Tenant agrees to
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cause all windows in the Premises to be kept closed. Tenant shall cooperate
fully with Landlord at all times and abide by all regula tions and requirements
which Landlord may reasonably prescribe for the proper functioning and
protection of the air-conditioning and heating systems.
24.5 If it is necessary to discontinue the supply of water, heat,
electrical energy, air conditioning, or any other service or services furnished
to the Premises by reason of emergency or for the purpose of necessary
alterations, repairs or improvements to the Premises, the Building, or any
portion thereof, or if any of the foregoing services cannot be furnished by
reason of an order of any governmental department, board or commission, or any
person exercising authority thereunder, or by reason of inability to secure
fuel or labor, or by reason of strikes, or any other reason beyond Landlord's
control, Tenant shall not be entitled to any compensation from Landlord or to
any abatement or diminution of the Base Rent or additional rent. Landlord shall
provide reasonable notice for non-emergency interruption of services to the
Premises.
ARTICLE 25. EMINENT DOMAIN
25.1 If the whole of the Premises shall be acquired or condemned for
any public or quasi-public use or purpose, this Lease and the Lease Term shall
end as of the date of the vesting of title with the same effect as if said date
were the date of expiration of the Lease Term. If only a part of the Premises
shall be so acquired or condemned, then, except as otherwise provided in this
Article, this Lease and the Lease Term shall continue in force and effect but,
from and after the date of the vesting of title, the Base Rent shall be reduced
in the proportion which the area of the part of the Premises so acquired or
condemned bears to the total area of the Premises immediately prior to such
acquisition or condemnation.
25.2 If any part of the Building shall be acquired or condemned for
any public or quasi-public use or purpose, and by reason of such acquisition or
condemnation, Landlord, in Landlord's reasonable judgment, deems it necessary
for the soundest use of the land upon which the Building is situated to
terminate this Lease, then (except in the case of a di minimis acquisition
which has no effect on the operation of the Building), whether or not the
Premises shall be affected thereby, Landlord, at Landlord's option, may give to
Tenant, at any time thereafter, fifteen (15) days' notice of termination of
this Lease. If the part of the Building so acquired or condemned shall contain
more than ten percent (10%) of the total area of the Premises immediately prior
to such acquisition or condemnation, or if Tenant no longer has reasonable
means of access to the Premises, or if more than twenty-five per cent (25%) of
the office space available for lease in the Building shall be so acquired or
condemned, then, in any such event, Tenant, at Tenant's option, may give to
Landlord, within sixty (60) days next following the date upon which Tenant
shall have received notice of vesting of title, fifteen (15) days' notice of
termination of this Lease. In the event any such fifteen (15) day notice of
termination is given, by Landlord or Tenant, this Lease and the Lease Term
shall come to an end and expire upon the expiration of said fifteen (15) days
with the same effect as if the date of expiration of said fifteen (15) days
were the date for the expiration of the Lease Term. In the event of any
termination of this Lease pursuant to the provisions of this Section, the Base
Rent and additional rent shall be apportioned as of the date of such
termination and any prepaid portion of Base Rent and additional rent for any
period after such date shall be refunded by Landlord to Tenant.
25.3 If a part of the Premises shall be so acquired or condemned and
this Lease and the Lease Term shall not be terminated pursuant to the foregoing
provisions, Landlord, at Landlord's expense, shall restore that part of the
Premises not acquired or condemned as nearly as practicable to its condition
prior to such acquisition or condemnation, but Landlord shall have no
obligation to repair or restore any of Tenant's leasehold improvements or trade
fixtures. Notwithstanding the foregoing, Landlord shall not
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have any obligation whatsoever to restore the Premises unless the condemnation
award, if any, is sufficient to cover the cost of such restoration.
25.4 In the event of any acquisition or condemnation of all or any
part of the Building (including, without limitation, all or part of the
Premises), Landlord shall be entitled to receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Lease
Term, and Ten ant hereby expressly assigns to Landlord all of its right in and
to any such award. Nothing herein contained shall be deemed to pre clude Tenant
from making an application for an award for the value of the trade fixtures and
leasehold improvements at the Premises, to the extent owned by Tenant, or for
Tenant's relocation expenses.
ARTICLE 26. DEFAULTS AND REMEDIES
26.1 The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(a) The failure by Tenant to make any payment of Base Rent,
additional rent, or other payment required to be made by Tenant hereunder, for
a period of three (3) days after written notice thereof from Landlord to
Tenant; provided, however, that any such notice shall be in lieu of, and not in
addition to, any notice required under Tennessee law.
(b) The failure by Tenant to observe or perform any of the
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in subsection (a) above, where such failure shall
continue for a period of fifteen (15) days after written notice thereof from
Landlord to Tenant; provided, however, that any such notice shall be in lieu
of, and not in addition to, any notice required under Tennessee law; provided
further, that if the nature of Tenant's default is such that more than fifteen
(15) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant shall commence such cure within said fifteen-day
period and thereafter diligently prosecute such cure to completion.
Notwithstanding the foregoing, if the covenant or other provision of this Lease
which is violated by Tenant cannot thereafter be performed (such as obtaining
Landlord's prior written consent to an assignment of Tenant's interest in this
Lease, a subletting of the Premises, a change in use or a physical alteration
to the Premises) by Tenant, then Landlord need not give the foregoing notice
demanding performance to Tenant (or to any subtenant or assignee) for such
violation to constitute a default under this Lease entitling Landlord to
exercise its remedies upon a default by Tenant, including those set forth in
this Article 26.
(c) The abandonment of the Premises by Tenant. Abandonment
is herein defined to include, but is not limited to, the removal of Tenant's
property from the Premises or any absence by Tenant from the Premises for ten
(10) days or longer.
(d) (i) The making by Tenant of any general assignment for
the benefit of creditors; (ii) the filing by or a petition for reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within thirty (30) days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days; or (v) Tenant's convening of a meeting of Tenant's creditors or any class
thereof for the purpose of effecting a moratorium upon or composition of
Tenant's debts, or any class thereof.
26.2 (a) In the event of any default by Tenant as defined
herein, Landlord may exercise the following remedies:
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(i) Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall
terminate, and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event, Landlord shall be entitled to
recover from Tenant all amounts which Landlord is entitled to recover
pursuant to Tennessee law (or any succes sor thereto), including, but
not limited to:
(A) The worth at the time of award of any
unpaid rent which has accrued prior to the date of
termination of the Lease; plus,
(B) The worth at the time of award of the
amount by which the unpaid rent which would have been
earned after termination of this Lease until the time of
award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
(C) The worth at the time of award of the
amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental
loss that Tenant proves could have been reason ably
avoided; plus
(D) Any other amount necessary to
compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations under
this Lease or which, in the ordinary course of things,
would be likely to result therefrom, including, but not
limited to, the cost of recovering possession of the
Premises, expenses of reletting, including necessary
repair, renovation and alteration of the Premises,
reasonable attorneys' fees, court costs and other legal
costs, and the unamortized portion of (1) broker's
commissions paid by Landlord in connection with this Lease,
(2) all costs incurred by Landlord to improve the Premises,
and (3) any additional amount furnished in the nature of an
allowance, (all of such amortiza tion to be based on the
assumption that such costs and expenses are amortized on a
straight line basis over the initial term of the Lease);
plus
(E) At Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable state law.
Damages shall be due and payable from the date of
termination.
As used in subsections (a)(i)(A) and (a)(i)(B),
the phrase "worth at the time of award" shall be computed by adding
interest on all such sums from the date when originally due at the
lesser of eighteen percent (18%) per annum or the maximum interest
rate permissible by law. As used in subsec tion (a)(i)(C), the phrase
"worth at the time of award" is computed by discounting such amount by
one (1) percentage point above the discount rate of Citibank, N.A. at
the time of award.
For purposes of this Section 26.2, "rent" shall
mean Base Rent and additional rent (including Tenant's Share of
increases in Operating Expenses). As used in subsections (a)(i)(B) and
(a)(i)(C), rent for each Lease Year of the unexpired term of this
Lease following termination shall be equivalent to the Base Rent for
the preceding Lease Year, together with any continuously accruing
expenses (including Operating Expenses); or, if the default occurs
less than one year after the Commencement Date, the rent for the
unexpired term of this Lease shall be equivalent to an amount equal to
one and one-half (1.5) times the Base Rent, plus any continu ously
accruing expenses.
(ii) Without terminating or effecting a forfeiture
of this Lease or otherwise relieving Tenant of any obligation
hereunder in the absence of express written notice of
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Landlord's election to do so, Landlord may, but need not, relet the
Premises or any portion thereof, at any time or from time to time, and
for such terms and upon such conditions and rental as Landlord, in its
discretion, may deem proper. Whether or not the Premises are relet,
Tenant shall pay to Landlord all amounts required by Tenant hereunder
up to the date that Landlord terminates Tenant's right to possession of
the Premises. Such payments by Tenant shall be due at the times
provided in this Lease, and Landlord need not wait until the
termination of this Lease to recover them by local action or in any
other manner. If Landlord relets the Premises or any portion thereof,
such reletting shall not relieve Tenant of any obligation hereunder,
except that Landlord shall apply the rent or other proceeds actually
collected by Landlord for such reletting against amounts due from
Tenant hereunder to the extent such proceeds compensate Landlord for
non-perform ance of any obligation of Tenant hereunder. Landlord may
execute any lease made pursuant thereto in its own name, and the lessee
thereunder shall be under no obligation to see to the application by
Landlord of any proceeds to Landlord, nor shall Tenant have any right
to collect any such proceeds. Landlord shall not, by any re-entry or
other act, be deemed to have accepted any surrender by Tenant of the
Premises or Tenant's interest therein, or be deemed to have terminated
this Lease, or to have relieved Tenant of any obligation hereunder,
unless Landlord shall have given Tenant express written notice of
Landlord's election to do so as set forth herein.
(iii) Landlord may terminate this Lease by express
written notice to Tenant of its election to do so. Such termination
shall not relieve Tenant of any obligation hereunder which has accrued
prior to the date of such termi nation. In the event of such
termination, Landlord shall be entitled to recover from Tenant the
amounts determined pursuant to subsection (i) above.
(b) Landlord shall be under no obligation to observe or
perform any covenant of this Lease on its part to be observed or performed
which accrues after the date of any default by Tenant hereunder.
(c) In any action for unlawful detainer commenced by
Landlord against Tenant by reason of any default hereunder, the reasonable
rental value of the Premises for the period of the unlawful detainer shall be
deemed to be the amount of Base Rent and additional rent reserved in this Lease
for such period, unless Landlord or Tenant shall prove to the contrary by
competent evidence.
(d) The rights and remedies reserved to Landlord herein,
including those not specifically described, shall be cumulative, and except as
provided by Tennessee statutory law in effect at the time, Landlord may pursue
any or all of such rights and remedies, at the same time or otherwise.
(e) No delay or omission of Landlord to exercise any right
or remedy shall be construed as a waiver of any such right or remedy or of any
default by Tenant hereunder. The acceptance by Landlord of any rent hereunder
shall not be a waiver of any preced ing breach or default by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent
accepted, regard less of Landlord's knowledge of such preceding breach or
default at the time of acceptance of such rent, or a waiver of Landlord's right
to exercise any remedy available to Landlord by virtue of such breach or
default. The acceptance of any payment from a debtor in possession, a trustee,
a receiver or any other person, acting on behalf of Tenant or Tenant's estate,
shall not waive or cure a default under Section 26.1(d).
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(f) Tenant hereby waives any right of redemption or relief
from forfeiture under Tennessee law, and under any present or future statutes
or case decisions to the same effect, in the event Tenant is evicted or
Landlord takes possession of the Premises by reason of any default of Tenant
hereunder.
ARTICLE 27. PARKING
Subject to such rules and regulations as may be established by
Landlord or Landlord's licensee, Tenant and Tenant's employees shall be
entitled to use (3) assigned parking spaces in the parking garage serving the
Building at a rate of $35.00 per month and Tenant's employees shall be entitled
to use unassigned parking spaces subject to availability at $20.00 per space.
In the event Tenant requires additional parking spaces for its employees,
Tenant shall so notify Landlord and, subject to availability at the time of
Tenant's request, additional parking spaces shall be made available to Tenant's
employees at current parking rates offered to other tenants. All parking
designations for employees shall be at the discretion of Landlord.
ARTICLE 28. CAPTIONS
The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof.
ARTICLE 29. DEFINITIONS
The term "Landlord" as used in this Lease means only the Landlord, or
a mortgagee in possession for the time being of the land and Building (or the
landlord of a lease of the Building or of the land and Building), of which the
Premises form a part, so that in the event of any sale of said land and
Building or of said lease, or in the event of a lease of said Building, or of
the land and Building, the said Landlord shall be and hereby is entirely freed
and relieved of all covenants and obligations of Landlord hereunder, and it
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the Building, or of the land and Building,
that the purchaser or the lessee of the Building has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder.
ARTICLE 30. RULES AND REGULATIONS
Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with the Rules and
Regulations attached hereto as EXHIBIT "C" and such other and further
reasonable Rules and Regulations as Landlord or Landlord's agents may from time
to time adopt. Notice of any addi tional rule or regulation shall be given in
such manner as Landlord may elect. Nothing in this Lease contained shall be
construed to impose upon Landlord any duty or obligation to enforce the Rules
and Regulations or terms, covenants or conditions in any other lease, as
against any other tenant, and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
ARTICLE 31. SUCCESSORS AND ASSIGNS
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, admin istrators, successors and, except as
otherwise provided in this Lease, their assigns.
ARTICLE 32. HAZARDOUS SUBSTANCES
32.1 (a) So long as Tenant is in possession of the Premises,
Tenant shall not cause or permit to occur: (i) any violation of any present
federal, state or local law, ordinance or regulation related to environmental
conditions in or about the Premises,
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<PAGE> 21
including, but not limited to, improvements or alterations made to the Premises
at any time by Tenant, its agents or contractors, or (ii) the use, generation,
release, manufacture, refining, production, processing, storage or disposal of
any "Hazardous Substances" (as hereinafter defined) in or about the Premises,
or the transportation to or from the Premises of any Hazardous Substances.
Tenant, at its expense, shall comply with each present federal, state and local
law, ordinance and regulation related to environmental conditions in or about
the Premises or Tenant's use of the Premises, including, without limitation,
all reporting requirements and the performance of any cleanups required by any
governmental authorities. Tenant shall indemnify, defend and hold harmless
Landlord and its employees from and against all fines, suits, claims, actions,
damages, liabilities, costs and expenses (including attorneys' and consultants'
fees) asserted against or sustained by any such person or entity and arising
out of or in any way connected with Tenant's failure to comply with its
obligations under this Section 32.1(a), which obligations shall survive the
expiration or termination of this Lease.
(b) As used in this Article 32, "Hazardous Substances"
shall include, without limitation, flammables, explosives, radio active
materials, asbestos containing materials (ACMs), poly chlorinated biphenyls
(PCBs), chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous wastes, toxic substances, petroleum and petroleum
products, chloroflouro carbons (CFCs) and substances declared to be hazardous
or toxic under any present or future federal, state or local law, ordinance or
regulation.
ARTICLE 33. BROKER
Tenant and Landlord each represent that it did not deal with any
broker or finder in connection with this Lease, except Eakin & Smith, Inc.
("Broker"). Landlord shall pay Broker a broker's commission pursuant to
separate agreement between them. The parties acknowledge that CENTENNIAL INC.
is the co-broker ("Co- broker") in the transaction and that any leasing
commission payable to such Co-broker shall be paid by Broker pursuant to
separate agreements between Broker and such Co-broker. Tenant agrees that
should any claim be made for a broker's commission or finder's fee by anyone
other than Broker, through or on account of the acts of Tenant or its
representatives, Tenant will indemnify and hold harmless the Landlord from any
and all claims, costs, losses, liabilities and expenses in connection
therewith, and will reimburse Landlord for the costs, including attorneys'
fees, of defending any such claim, for any amount which Landlord may be
required to pay by reason thereof immediately upon written request therefore.
Landlord agrees that should any claim be made for a broker's commission or
finder's fee by anyone other than Broker, through or on account of the acts of
Landlord or its represen tatives, Landlord will indemnify and hold harmless
Tenant from any and all claims, costs, losses, liabilities and expenses in
connec tion therewith, and will reimburse Tenant for the costs, including
attorneys' fees, of defending any such claim, for any amount which Tenant may
be required to pay by reason thereof immediately upon written request
therefore.
ARTICLE 34. HOLDING OVER
If Tenant holds over after the expiration or earlier termination of
the Lease Term without the written consent of Landlord, Tenant shall become a
tenant at sufferance only and, for the time Tenant thus holds over, in addition
to all other charges due Landlord from Tenant under this Lease (including,
without limitation, the payment of all additional rent), Tenant shall pay
Landlord rent at a monthly rate equal to one and one-half (1.5) times the
monthly installment of Base Rent due Landlord under this Lease. The acceptance
by Landlord of rent after such expiration or earlier termination shall not
constitute a renewal of the term of this Lease nor shall it affect any other
rights of Landlord hereunder or as otherwise provided by law.
ARTICLE 35. BUILDING ALTERATIONS AND MANAGEMENT
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<PAGE> 22
Landlord shall have the right at any time without the same as
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building
may be known. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord or other tenants making
any repairs in the Building or any such alterations, additions and
improvements. Furthermore, Tenant shall not have any claim against Landlord by
reason of Landlord's imposition of such controls of the manner of access to the
Building by Tenant's social or business visitors as the Landlord may deem
necessary for the security of the Building and its occupants.
ARTICLE 36. NOTICES
All notices affecting the rights of the parties under this Lease,
except any demand for the payment of Base Rent, additional rent or other
payments, shall be in writing and shall be served by certified mail, postage
prepaid, return receipt requested, as follows: (a) if to Landlord, at the
address first hereinabove stated to the attention of its Corporate Secretary;
and (b) if to Tenant, at the address first hereinabove stated; or such other
addresses as the parties may, in writing, designate. Any demand for the payment
of the Base Rent or additional rent may be made by ordinary mail or by
certified mail, return receipt requested, at the option of Landlord. All
notices, demands and requests shall be deemed to have been properly served if
mailed in the manner and to the addresses above stated and shall be deemed
served at the time any such notice, demand or request shall have been received
or refused. (For purposes hereof, the term "refused" shall also mean a party's
failure to retrieve, within three (3) business days, any mail for which a
United States postal facility has sent notice of its arrival at such postal
facility.)
ARTICLE 37. LANDLORD'S LIEN
In order to secure payment of all rent becoming due hereunder from
Tenant, and to secure payment of any damages or loss that Landlord may suffer
by reason of the breach of Tenant of any covenant, or condition contained
herein, Tenant hereby grants Landlord a security interest upon all goods,
wares, equipment, furniture, improvements, and other personal property of
Tenant presently or hereafter situated in the Premises (the "Collateral"), and
all proceeds from the sale or lease thereof, and such property shall not be
removed from the Premises without the consent of Landlord except in the
ordinary course of business, until Tenant has paid all arrearages in rent
hereunder and complied with all the agreements and conditions hereof. In the
event of a default by Tenant (as defined in Article 26), Landlord may, in
addition to all other remedies provided in Article 26 or by law, enter upon the
Premises and take possession of any and all of the Collateral and sell the
Collateral pursuant to the Uniform Commercial Code provisions of the State of
Tennessee. Commercially reasonable notice shall be deemed to be at least ten
(10) days' notice prior to any foreclosure sale of the Collateral. The proceeds
from any disposition pursuant to this Section, less all expenses connected with
the taking of possession and foreclosure, including reasonable attorneys' fees
and legal expenses, shall be applied as a credit against Tenant's indebtedness
to Landlord. Any surplus shall be paid to Tenant or as otherwise required by
law. Upon the request of Landlord, Tenant shall execute and deliver to Landlord
appropriate financing statements in form sufficient to perfect the security
interest granted herein.
ARTICLE 38. MECHANIC'S LIENS
If, as a result of any work performed or alleged to have been
performed, or materials supplied or alleged to have been supplied,
by Tenant, any mechanic's, laborer's or materialman's lien shall, at any time,
be filed against the Building, the building complex of
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<PAGE> 23
which the Building is part, or any portion thereof, Tenant, within thirty (30)
days after notice of the filing thereof, shall cause the same to be discharged
of record by payment, deposit, bond, order of a court of competent jurisdiction
or otherwise. If Tenant shall fail to cause such lien to be discharged within
the period aforesaid, then, in addition to any other right or remedy, Landlord
may, but shall not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such lien by deposit
or by bonding proceedings, and in any such event, Landlord shall be entitled,
if Landlord so elects to compel the prosecution of an action for the
foreclosure of such lien by the lienor and to pay the amount of the judgment in
favor of the lienor with interest, costs and allowances. Any amount so paid by
Landlord and all costs and expenses and reasonable attorneys' fees incurred by
Landlord in connection therewith, together with interest thereon at a rate
equal to the Prime Rate announced, from time to time, by Citibank, N.A., plus
two percent (2%), but in no event greater than the legal maximum rate per
annum, from the respective dates of Landlord's making of the payment or
incurring of the cost and expense shall constitute additional rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord within ten (10)
days of demand therefore.
ARTICLE 39. LATE CHARGES
If the Base Rent, additional rent or any other sum due from Tenant is
not received when due, Tenant shall pay to Landlord, on demand, a late charge
equal to seven percent (7%) of such overdue payment. In addition, any rent or
other overdue sum which remains unpaid longer than ten (10) days from the date
due shall bear interest at the rate of ten percent (10%) per annum.
ARTICLE 40. MISCELLANEOUS COVENANTS
40.1 Tenant agrees that Tenant shall have no right to, or interest in,
the names "Loews" or "Vanderbilt Plaza Office Building" and Tenant shall not,
in any manner, use such words in the promotion of Tenant's business. Tenant
agrees not to publish, display or distribute any advertising or notices using
such names without first having obtained the written approval of Landlord in
respect of the name "Vanderbilt Plaza Office Building".
40.2 Landlord reserves the right, from time to time, to designate the
Building by any name and to change the name, number or designator.
40.3 Tenant waives the provisions of any statutes which (a) relate to
termination of leases when the Premises are destroyed, and (b) allow a tenant
to make repairs and deduct the cost of such repairs from the rent. Tenant
agrees that such event shall be governed by the terms of this Lease and not by
any such statutes.
40.4 Time is of the essence of each term, provision and
condition of this Lease.
40.5 The invalidity of any provision of this Lease as determined by a
court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
40.6 This Lease shall be governed by and construed in
accordance with the laws of the State of Tennessee.
40.7 This Agreement shall not be binding upon Landlord unless and
until both Landlord and Tenant have executed this Agreement.
ARTICLE 41. RENEWAL
Subject to the terms and conditions hereinafter set forth, and
provided Tenant is not then in default under the terms of this Lease, and no
event has occurred which, with the giving of notice or passage of time, would
constitute a default, Tenant shall have the option to renew this Lease for an
additional term of five (5) years commencing upon the expiration of the current
term. In order to exercise each such option, Tenant shall give Landlord written
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<PAGE> 24
notice at least six (6) months prior to the expiration of the then current term
and no sooner than twelve (12) months prior to the expiration of such term. All
of the terms, covenants and conditions of this Lease shall continue in full
force and effect during the renewal term, except that the Base Rent with
respect thereto shall be an amount calculated as hereinafter provided.
For purposes of this Amendment to Lease, the term "Average Base
Rental" shall mean the Base Rental rate (on a per square foot basis) for office
space leased to other tenants in the Building, which shall be calculated as an
average of the Base Rentals payable pursuant to the last two leases (based on
leases having lease terms of three years or five years) fully executed
immediately prior to Tenant's exercise of the Renewal Option provided for in
Paragraph 7 or the Expansion Option provided for in Paragraph 8.
Example: Prior to the exercise of Tenant's renewal option,
Tenant A has executed a five-year lease for 1,000 square feet at a
base rental of $24,000 per annum and Tenant B has executed a
three-year lease for 1,000 square feet at a base rental of $26,000 per
annum for the first year, $31,000 per annum for the second year and
$33,000 for the third year. The Average Base Rental is calculated as
follows: (i) For Tenant A, the base rental is $24 per square foot;
(ii) For Tenant B, the base rental is $30 per square foot (an average
based on $26 per square foot in Year 1, $31 per square foot in Year 2
and $33 per square foot in Year 3). The Average Base Rental is $27 per
square foot (an average of the Base Rental for Tenant A and Tenant B)
and Tenant's Base Rental for the renewal term shall be an amount equal
to 90% of the Average Base Rental.
ARTICLE 42. OPTION TO LEASE ADDITIONAL SPACE
Subject to the terms and conditions hereinafter set forth, and
provided Tenant is not then in default under the terms of this Lease, the
Landlord hereby grants to Tenant an option to lease any space on the eighth
(8th) floor of the Building as such space becomes available (the "Expansion
Space"). The Expansion Space shall be leased to Tenant at the Base Rent (on a
per square foot basis) in effect with respect to the Premises as of the date
Tenant exercises its option. Landlord shall give Tenant notice of the available
space, setting forth the material terms and conditions of the Lease. Following
receipt of such notice from Landlord, Tenant shall have five (5) business days
in which to notify Tenant in writing of its intent to exercise its option with
respect to the Expansion Space. If Tenant shall exercise its option with
respect to Expansion Space, Tenant shall have an additional five (5) business
days to execute and deliver to Landlord a lease agreement (in the form of an
amendment to this Lease) with respect to such space. Tenant acknowledges and
decrees that any such Expansion Space shall be leased by Tenant in its "As Is"
condition, and that Landlord shall have no obligation to alter, refurbish or
improve such space, except as hereinafter provided. In the event Tenant
exercises its option to lease Expansion Space on the eighth (8th) floor of the
Building, as herein set forth, such Expansion Space shall constitute part of
the Premises, effective as of the date an amendment to Lease is executed by
both parties, and EXHIBIT "A" shall be amended to designate the expanded
Premises.
If, as a result of Tenant's lease of the Expansion Space, Tenant is
the sole tenant on the eighth (8th) floor of the Building, and the Premises
constitute a single suite of offices, then Landlord shall have the right to
reconfigure the space on the eighth (8th) floor to reflect a one-tenant
occupancy of such suite of offices. Such reconfiguration of space may include,
without limitation, the elimination of common areas (including hallways,
corridors, bathrooms and mechanical rooms), which areas shall be incorporated
into the square footage comprising the Premises, and
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<PAGE> 25
the Premises shall constitute the entire eighth (8th) floor of the
Building for all purposes.
Provided Tenant exercises the option to lease Expansion Space
hereunder no later than December 31, 1996, Landlord shall make improvements to
the Expansion Space at a cost not to exceed $21,152. Such improvements shall be
made in accordance with plans and specifications to be developed by Landlord
and approved by Tenant. Any construction costs in excess of $21,152 shall be
borne by Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this Lease as of the day and year first above written.
Witness for Landlord: Landlord:
LOEWS NASHVILLE HOTEL CORP.
- ---------------------------
By:___________________________
Name: John G. Malino
Title: Vice President
Witness for Tenant: Tenant:
RENAL CARE GROUP, INC.
- ---------------------------
By:___________________________
Name:
Title:
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<PAGE> 26
EXHIBIT "A"
PREMISES
[NOT DRAWN TO SCALE]
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<PAGE> 27
EXHIBIT "B"
PLANS AND SPECIFICATIONS
[TO BE ATTACHED UPON COMPLETION]
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<PAGE> 28
EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery
by Landlord. There shall not be used in any space, or in the public hall of the
Building, either by any tenant or by jobbers, or others in the delivery or
receipt of merchandise, any hand trucks except those equipped with rubber tires
and safeguards.
2. The water, lavatories and plumbing fixtures shall not be used for
any purposes other than those for which they were desig nated or constructed,
and no sweepings, rubbish, rags or other substances shall be deposited therein.
3. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein.
4. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the Premises or the Building or on the inside of the Premises if the
same is visible from the outside of the Premises without the prior written
consent of Landlord, except that the name of Tenant may appear on the entrance
door of the Premises. In the event of the violation of the foregoing by any
Tenant, Landlord may remove same without any liability and may charge the
expense incurred by such removal to Tenant or Tenants violating this rule.
Signs on interior doors and directory tablet shall be inscribed, painted or
affixed for each Tenant by Landlord at the expense of such Tenant, and shall be
of a size, color and style acceptable to Landlord.
5. No Tenant shall mark, paint, drill into, or in any way deface any
part of the Premises or the Building. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and as
Landlord may direct. No Tenant shall lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of the
Premises, and, if linoleum or other similar floor covering is desired to be
used an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other material, soluble in water, the use of cement or
other similar adhesive material being expressly prohibited.
6. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Upon the termina tion of the Lease, Tenant shall
return to Landlord all keys either furnished to or otherwise procured by
Tenant.
7. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the Premises
only on the freight elevators and through the service entrances and corridors,
and only during hours and in a manner approved by Landlord. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
8. Canvassing, soliciting and peddling in the Building is
prohibited and Tenant shall cooperate to prevent the same.
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<PAGE> 29
9. Landlord reserves the right to exclude from the building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and legal holidays, all persons who do not
present a pass to the Building signed by Landlord or its agent.
10. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of Landlord
or the desirability of the Building as an office building, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
11. Tenant shall not bring or permit to be brought or kept in or on
the Premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or
emanate from the Premises.
12. Tenant shall not place a load on any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry
and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipments.
Such installation shall be placed and maintained by Tenant at Tenant's expense
in setting sufficient in Landlord's judgment to absorb and prevent vibration,
noise and annoyance.
13. Tenant shall not permit loitering by Tenant's employees
or invitees in the public areas of the Building.
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<PAGE> 30
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE dated August 19, 1996 between LOEWS NASHVILLE
HOTEL CORP., a Delaware corporation, having its principal place of business at
667 Madison Avenue, New York, New York 10021-8087, as Landlord, and RENAL CARE
GROUP, INC., having its principal place of business at 2100 West End Avenue,
Nashville, Tennessee 37203, as Tenant.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a lease (the "Lease"),
dated April 16, 1996, for Premises known as Suite 800, located in the
Vanderbilt Plaza Office Building, 2100 West End Avenue, Nashville, Tennessee,
shown on Exhibit "A" attached to the Lease; and
WHEREAS, Article 42 of the Lease gives Tenant an option to lease
additional space on the 8th floor of the Building as such space becomes
available; and
WHEREAS, Tenant desires to exercise its option to lease additional
space as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
hereby agree to amend the Lease as follows:
1. Pursuant to Article 42 of the Lease, Tenant hereby exercises the
option to lease additional space on the 8th floor. Article 42 is hereby deleted
from the Lease and is of no further force and effect.
2. Effective November 1, 1996, the Premises shall consist of a suite
of offices containing (i) the office space presently occupied by the Tenant
known as Suite 800, and (ii) the additional space leased by Tenant pursuant to
this Amendment to Lease (the "Expansion Space"). An amended floor plan of the
Premises is attached hereto as EXHIBIT A.
3. Effective November 1, 1996, the Base Rent for the Lease Term shall
be increased to take into account Tenant's lease of the Expansion Space, and
Section 2.2 shall be amended to read in its entirety as follows:
"2.2 During the term of this Lease, the Base Rent payable
by Tenant shall be as follows:
(a) $235,944.00 for the period from NOVEMBER 1,
1996 through JULY 31, 1997, payable $19,662.00 per month;
<PAGE> 31
(b) $249,052.00 for the period from AUGUST 1,
1997 through JULY 31, 1999, payable $20,754.33 per month;
(c) $262,160.00 for the period from AUGUST 1,
1999 through JULY 31, 2000, payable $21,846.67 per month;
(d) $275,268.00 for the period from AUGUST 1,
2000 through JULY 31, 2001, payable $22,939.00 per month; and
(e) $288,376.00 for the period from AUGUST 1,
2001 through JULY 31, 2002, payable $24,031.33 per month."
4. As a result of Tenant's lease of the Expansion Space, Tenant's
Share of Excess Operating Expenses shall be increased to 10.3%.
Effective November 1, 1996, Section 4.1 is hereby amended to read in
its entirety as follows:
"4.1 During the Lease Term (including any renewals), Tenant
shall pay to Landlord, as additional rent, a sum equal to Tenant's
Share of Excess Operating Expenses (as such term is hereinafter
defined) in connection with operating, maintaining, repairing,
managing and owning the Building and the Common Areas of the Loews
Vanderbilt Plaza building complex. "Tenant's Share of Excess Operating
Expenses" shall be calculated on the basis of any excess Operating
Expenses for a particular Lease Year over actual Operating Expenses
for calendar year 1996 (the "Base Year"). For purposes of this
Section, "Tenant's Share" shall be deemed to be percent (10.3%). The
calculation of Tenant's Share is based upon the ratio of the
approximate square footage of the Premises (13,108) to the approximate
square footage of the Building (127,162). The numbers given in the
preceding sentence do not represent accurate measurements of the
square footage contained in the Premises or the Building but are mere
estimates for purposes of calculating "Tenant's Share" hereunder.
Tenant's Share of Excess Operating Expenses shall not be increased by
more than five percent (5%) in any Lease Year as compared to Tenant's
Share of Excess Operating Expenses for the previous Lease Year."
5. Pursuant to Article 42 of the Lease, Landlord has agreed to
construct improvements to the Expansion Space at a cost not to exceed $21,152
in accordance with plans and specifications (the "Plans and Specifications") to
be developed by Landlord and approved by Tenant. The approved Plans and
Specifications are annexed hereto as EXHIBIT B. Any construction cost in excess
of $21,152 shall be borne by Tenant. The taking of possession by Tenant of the
Expansion Space shall conclusively establish that said improvements have been
completed in accordance with the Plans and Specifications and that the
Expansion Space is in good and satisfactory condition at the time possession is
taken. Unless otherwise specified in the Plans and Specifications, all
materials used in the construction of the Expansion Space shall be Landlord's
standard items used in the Building. Landlord shall notify Tenant at such time
as construction of the Expansion Space is substantially completed.
"Substantially completed" as used herein shall mean that the Expansion Space is
suitable for occupancy and use by Tenant.
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<PAGE> 32
6. If Landlord for any reason whatsoever cannot deliver possession of
the Expansion Space to Tenant by November 1, 1996, this Amendment to Lease
shall not be void or voidable nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom; but in that event, the term with respect to
the Expansion Space only shall commence on the date that Landlord can deliver
possession to Tenant. Until such time as Landlord delivers possession of the
Expansion Space to Tenant, Tenant shall continue in possession of the Premises
currently occupied by Tenant and pay to Landlord, the current Base Rent payable
pursuant to the terms of the Lease.
7. Except as herein amended, all of the terms and provisions of
the Lease remain unchanged and are hereby ratified and confirmed in all
respects.
Landlord:
LOEWS NASHVILLE HOTEL CORP.
By:________________________________
Name:
Title:
Tenant:
RENAL CARE GROUP, INC.
By:________________________________
Name:
Title:
- 3 -
<PAGE> 33
EXHIBIT A
FLOOR PLAN
- 4 -
<PAGE> 34
EXHIBIT B
PLANS AND SPECIFICATIONS
- 5 -
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF RENAL CARE GROUP, INC. FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1996, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<EXCHANGE-RATE> 1
<CASH> 25,476
<SECURITIES> 0
<RECEIVABLES> 26,678
<ALLOWANCES> 0
<INVENTORY> 2,525
<CURRENT-ASSETS> 56,430
<PP&E> 27,292
<DEPRECIATION> 0
<TOTAL-ASSETS> 88,779
<CURRENT-LIABILITIES> 32,204
<BONDS> 0
0
0
<COMMON> 126
<OTHER-SE> 53,978
<TOTAL-LIABILITY-AND-EQUITY> 88,779
<SALES> 90,987
<TOTAL-REVENUES> 90,987
<CGS> 63,397
<TOTAL-COSTS> 63,397
<OTHER-EXPENSES> 14,584
<LOSS-PROVISION> 1,710
<INTEREST-EXPENSE> 394
<INCOME-PRETAX> 11,690
<INCOME-TAX> 4,609
<INCOME-CONTINUING> 7,001
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,081
<EPS-PRIMARY> .53
<EPS-DILUTED> .53
</TABLE>
