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EXHIBIT 10.26
REVOLVING/TERM NOTE
$35,000,000.00 Nashville, Tennessee May 30, 1996
FOR VALUE RECEIVED, RENAL CARE GROUP, INC., a Delaware corporation,
RCG MISSISSIPPI, INC., a Delaware corporation, RENAL CARE GROUP, INC., a
Tennessee corporation, KANSAS NEPHROLOGY ASSOCIATION, a Kansas corporation,
RENAL CARE GROUP TEXAS, INC., a Texas corporation, and D.M.N. OF INDIANA
CORPORATION, an Indiana corporation (collectively "Makers") jointly and
severally promise to pay to the order of NationsBank of Tennessee, N.A.
("Payee"), a national banking association, the sum of Thirty-five Million and
No/100 Dollars ($35,000,000.00), or as much thereof as may be outstanding from
time to time, together with interest thereon as provided in that Loan Agreement
of even date herewith between Makers and Payee (the "Loan Agreement").
Reference is made to the Loan Agreement for the terms of payment of
principal and interest hereunder and for other provisions regarding additional
payments, prepayment, draws and other terms and conditions applicable to the
indebtedness evidenced by this Note. As provided in the Loan Agreement, all
remaining principal, interest and expenses outstanding hereunder or under the
Loan Agreement shall become finally due on May 30, 2001.
As provided in the Loan Agreement, interest hereunder shall be
calculated based upon a 360-day year and actual days elapsed. As provided in
greater detail in the Loan Agreement, the interest rate required hereby shall
not exceed the maximum rate permissible under applicable law, and any amounts
paid in excess of such rate shall be applied to reduce the principal amount
hereof or shall be refunded to Makers, at the option of the holder of this
Note.
Subject to the provisions of the Loan Agreement, Makers may borrow,
repay and reborrow amounts hereunder from time to time, provided that Makers
are not in default hereunder or under the Loan Agreement and provided that all
conditions to Xxxxx's obligation to fund advances as set forth in the Loan
Agreement are satisfied. Payee shall have no liability for its refusal to
advance funds hereunder following a determination that any condition precedent
to the making of an advance has not been satisfied.
Xxxxx's records of the amounts advanced hereunder shall be conclusive
proof thereof, absent manifest error.
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All amounts due under this Note are payable at par in lawful money of
the United States of America, at the principal place of business of Payee in
Nashville, Tennessee, or at such other address as the Payee or other holder
hereof (herein "Holder") may direct.
The occurrence of an Event of Default under the Loan Agreement shall
constitute an Event of Default under this Note.
Upon the occurrence of an Event of Default, as defined above, Holder
may, at its option and without notice (except as provided in the Loan
Agreement), declare all principal and interest provided for under this Note,
and any other obligations of any Maker to Holder, to be presently due and
payable, and Holder may enforce any remedies available to Holder under any
documents securing or evidencing debts of Makers to Holder. Holder may waive
any default before or after it occurs and may restore this Note in full effect
without impairing the right to declare it due for a subsequent default, this
right being a continuing one. Upon default, the remaining unpaid principal
balance of the indebtedness evidenced hereby and all expenses due Holder shall
bear interest at the "Default Rate," as defined in the Loan Agreement.
All amounts received for payment of this Note shall be applied in
accordance with the Loan Agreement.
Makers and all sureties, guarantors, endorsers and other parties to
this instrument hereby consent to any and all renewals, waivers, modifications,
or extensions of time (of any duration) that may be granted by Holder with
respect to this Note and severally waive demand, presentment, protest, notice
of dishonor, and all other notices that might otherwise be required by law,
except as set forth in the Loan Agreement. All parties hereto waive the defense
of impairment of collateral and all other defenses of suretyship, if
applicable.
Makers' performance under this Note is secured by various property, as
described in the Loan Agreement.
Makers and all sureties, guarantors, endorsers and other parties
hereto agree to pay reasonable attorneys' fees and all court and other costs
that Holder may incur in the course of efforts to collect the debt evidenced
hereby or to protect Xxxxxx's interest in any collateral securing the same.
The validity and construction of this Note shall be determined
according to the laws of Tennessee applicable to contracts executed and
performed within that state and applicable federal law. If any provision of
this Note should for any reason be invalid or unenforceable, the remaining
provisions hereof shall remain in full effect. This Note may be amended, and
provisions hereof may be waived, only by written instrument signed by Xxxxxx
and the Makers.
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Any controversy or claim between or among the parties hereto including
but not limited to those arising out of or relating to this Note or any related
instruments, agreements or documents, including any claim based on or arising
from an alleged tort, shall be determined by binding arbitration in accordance
with the Federal Arbitration Act (or if not applicable, the applicable state
law), the Rules of Practice and Procedure for the Arbitration of Commercial
Disputes of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the
"Special Rules" set forth below. In the event of any inconsistency, the Special
Rules shall control. Judgment upon any arbitration award may be entered in any
court having jurisdiction. Any party to this Note may bring an action,
including a summary or expedited proceeding, to compel arbitration of any
controversy or claim to which this Note applies in any court having
jurisdiction over such action.
(i) Special Rules. The arbitration shall be conducted in
Nashville, Tennessee and shall be administered by J.A.M.S who will appoint an
arbitrator; if J.A.M.S. is unable or legally precluded from administering the
arbitration, then the American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of the demand for
arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days.
(ii) Reservation of Rights. Nothing in this arbitration provision
shall be deemed to (i) limit the applicability of any otherwise applicable
statutes of limitation or repose and any waivers contained in this arbitration
provision; or (ii) be a waiver by the Holder of the protection afforded to it
by 12 U.S.C. Sec. 91 or any substantially equivalent state law; or (iii) limit
the right of the Holder hereto (a) to exercise self help remedies such as (but
not limited to) setoff, or (b) to foreclose against any real or personal
property collateral, or (c) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief, writ of possession or
the appointment of a receiver. The Holder may exercise such self help rights,
foreclose upon such property, or obtain such provisional or ancillary remedies
before, during or after the pendency of any arbitration proceeding brought
pursuant to this instrument, agreement or document. Neither this exercise of
self help remedies nor the institution or maintenance of an action for
foreclosure or provisional or ancillary remedies shall constitute a waiver of
the right of any party, including the claimant in such action, to arbitrate the
merits of the controversy or claim occasioning resort to such remedies.
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Words used herein indicating gender or number shall be read as context
may require.
RENAL CARE GROUP, INC.,
a Delaware corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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RCG MISSISSIPPI, INC.,
a Delaware corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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RENAL CARE GROUP, INC.,
a Tennessee corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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KANSAS NEPHROLOGY ASSOCIATION,
a Kansas corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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RENAL CARE GROUP TEXAS, INC.,
a Texas corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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D.M.N. OF INDIANA CORPORATION,
an Indiana corporation, Maker
By: /s/ Xxxxxx Xxxxx
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Title: EVP
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