EXHIBIT 10.25
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of December 3, 2002
between THE BANK OF NOVA SCOTIA and APRIA HEALTHCARE GROUP INC.
("Party A") ("Party B")
Part 1. TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party B for the purpose of:-
Section 5(a)(v), Affiliates
Section 5(a)(vi), Affiliates
Section 5(a)(vii), Affiliates
Section 5(b)(iv), Affiliates
(b) "SPECIFIED TRANSACTION" means (a) any transaction (including an
agreement with respect thereto) now existing or hereafter entered into
(i) between one party to this Agreement (or any Credit Support Provider
of such party or any applicable Specified Entity of such party) and the
other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party), or
(ii) to which Party B (or any Credit Support Provider of Party B or any
applicable Specified Entity of Party B) is a party, which is a rate
swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option
with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a
Specified Transaction in this Agreement or the relevant confirmation.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party
A and Party B; provided that the term "Cross Default" is hereby
modified to exclude any default under any agreement or instrument
relating to Specified Indebtedness or the failure to make payment with
respect thereto if such default or failure results solely from
non-payment by reason of governmental or regulatory action (other than
any such governmental or regulatory action resulting from the
occurrence of any of the events set out in Section 5(a)(vii)).
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14.
"THRESHOLD AMOUNT" means in relation to Party A, an amount equal to 5%
of the total shareholders' equity of Party A as specified from time to
time in the most recently published audited financial statements of
Party A or its equivalent in any other currency and, in relation to
Party B, any amount in relation to indebtedness between the parties
hereto, otherwise USD 5,000,000 or its equivalent in any other
currency.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will
apply to Party A and Party B.
(e) AUTOMATIC EARLY TERMINATION. The "Automatic Early Termination"
provision of Section 6(a) will not apply to Party A or Party B;
provided, however, that if at any time an Event of Default specified in
Section 5(a)(vii) (1), (3), (4), (5), (6) or, to the extent analogous
thereto, (8), with respect to a party has occurred and is then
continuing, and any court, tribunal or regulatory authority with
competent jurisdiction acting pursuant to any bankruptcy or insolvency
law or other similar law affecting such party makes an order which has
or purports to have the effect of prohibiting the other party from
designating an Early Termination Date in respect of all outstanding
Transactions at any time after such Event of Default has occurred and
is then continuing, in accordance with Section 6(a), the "Automatic
Early Termination" provision of 6(a) will apply to such party.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e), Market
Quotation and the Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) "ADDITIONAL TERMINATION EVENT" will apply. The following shall
constitute Additional Termination Events:
(1) All amounts outstanding under the Credit Agreement to Party A
have been repaid by Party B and all commitments of Party B to
Party A thereto have terminated or expired other than as a result
of a default by Party B thereto; and
(2) The Credit Support Documents (as specified in Part 4 hereof)
terminate, expire or otherwise cease to be in full force and
effect to secure Party B's obligations hereunder other than as a
result of a default by Party B or any Credit Support Provider
thereto.
For the purposes of these Additional Termination Events, the Affected
Party shall be Party B.
(i) ADDITIONAL EVENTS OF DEFAULT. The following will constitute additional
Events of Default:
(1) One or more final judgments or orders for the payment of money
is rendered against the party or, in relation to Party B, any
Affiliate of such party, in an aggregate amount of not less than
the applicable Threshold Amount and such judgments or orders are
not discharged, vacated, stayed or bonded pending appeal on or
before the thirtieth day after the entry thereof; and
(2) With respect to Party B, the occurrence of an EVENT OF DEFAULT
(as such term is defined in the Credit Agreement).
Part 2. TAX REPRESENTATIONS.
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e), Party A and
Party B will make the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e)) to be made by it to the other party under this
Agreement. In making this representation, it may rely on (i) the
accuracy of any representations made by the other party pursuant to
Section 3(f), (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) and (iii) the satisfaction of the agreement of the other
party contained in Section 4(d), provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f),
(i) PARTY A, WHEN ACTING THROUGH AN OFFICE LOCATED OUTSIDE OF THE
UNITED STATES OF AMERICA, AND PARTY B WILL MAKE THE FOLLOWING
REPRESENTATION:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to the trade of business
carried on by it through a permanent establishment in the Specified
Jurisdiction.
"SPECIFIED TREATY" means, with respect to Party A and Party B, the
Canada - United States of America Income Tax Convention.
"SPECIFIED JURISDICTION" means, with respect to Party A, the United
States of America, and with respect to Party B, Canada.
(ii) PARTY A, WHEN ACTING THROUGH ITS NEW YORK AGENCY, WILL MAKE THE
FOLLOWING REPRESENTATION:
Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or
business in the United States of America.
(iii) PARTY B WILL MAKE THE FOLLOWING REPRESENTATION:
It is a "US person" within the meaning of United States Treasury
Regulation section 1.1441-4(a)(3)(ii) (as in effect January 2001).
Part 3. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and 4(a)(ii), each party agrees to deliver
the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
PARTY
REQUIRED FORM/
TO DELIVER DOCUMENT/ DATE BY WHICH
DOCUMENT CERTIFICATE TO BE DELIVERED
---------- --------------- ----------------------------
Party A Internal Revenue Execution and delivery of
Service Forms Agreement
W8ECI and W8BEN
Party B Internal Revenue Execution and delivery of
Service Form W-9 Agreement
(b) Other documents to be delivered are:-
PARTY
REQUIRED FORM/ COVERED BY
TO DELIVER DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
---------- --------------- ---------------------------- --------------
Party A Incumbency Execution and delivery of Yes
and Certificate Agreement and, if requested
Party B in respect of a Transaction,
execution and delivery of
applicable Confirmation
Party B Authorizing Execution and delivery of Yes
Resolution Agreement and, if requested
in respect of a Transaction,
execution and delivery of
applicable Confirmation
Party B Legal Opinion Execution and delivery of Yes
in substantially Agreement and, if requested
the form appended in respect of a Transaction,
as Exhibit A execution and delivery of
applicable Confirmation
Part 4. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
All notices or communications to Party A shall, with respect to a
particular Transaction, be sent to the address or facsimile number
reflected in the Confirmation for that Transaction; provided,
however, that all notices in respect of Sections 5, 6, 9(b) or
13(c) of this Agreement shall be directed to Party A's Toronto
Office as follows:
Address: 00 Xxxx Xxxxxx Xxxx, Xxxxxx Plaza, 8th Floor
Toronto, Ontario Canada M5H 1H1
Attention: Trading Contract Management
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
ADDRESSES FOR NOTICES OR COMMUNICATIONS TO PARTY B:
Attention: PLEASE ADVISE
Facsimile: PLEASE ADVISE
Telephone: PLEASE ADVISE
(b) OFFICES. The provisions of Section 10(a) will apply to Party A and to
Party B.
(c) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is a Multibranch Party and may act through its Toronto Office,
New York Agency, London Office and any other office set out in a
relevant Confirmation.
Party B is not a Multibranch party.
(d) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(e) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:[ ]
In relation to Party A: Not applicable
In relation to Party B: The Credit Documents (as that term is defined
in the Credit Agreement) as replaced, supplemented or amended from time
to time, including any other document which by its terms secures,
guarantees or otherwise supports Party B's obligations hereunder from
time to time.
(f) CREDIT SUPPORT PROVIDER.
In relation to Party A: Not applicable.
In relation to Party B: The Guarantors (as that term is defined in the
Credit Agreement) as replaced, supplemented or amended from time to
time.
(g) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine).
(h) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) will not apply
to any Transaction starting from the date of this Agreement.
(i) "AFFILIATE" will have the meaning specified in Section 14.
Part 5. OTHER PROVISIONS.
(a) ILLEGALITY. For the purpose of Section 5(b)(i), the obligation of a
party to comply with any directive issued or given by any government
agency or authority with competent jurisdiction which has the result
referred to in Section 5(b)(i) will be deemed to be an "Illegality".
(b) CALCULATION AGENT. The failure of the Calculation Agent to comply with
or perform any of its agreements or obligations as Calculation Agent
will not constitute a Breach of Agreement with respect to such party
and the sole remedy of the other party with respect to such failure
will be the right, upon notice to the Calculation Agent and provided
that such failure is then continuing, to designate itself or a third
party as a replacement Calculation Agent.
(c) SET-OFF. Section 6 will be amended by adding the following Section as
Section 6(f):
"(f) SET OFF. Any amount (the "Early Termination Amount") payable to
one party ("the Payee") by the other party ("the Payer") under Section
6(e), in circumstances where there is a Defaulting Party or one
Affected Party in the case where a Termination Event under Section
5(b)(iv) has occurred, will, at the option of the party ("X") other
than the Defaulting Party or the Affected Party ("Y") (and without
prior notice to Y), be reduced by its set-off against any amount(s)
(the "Other Agreement Amount") payable (whether at such time or in the
future or upon the occurrence of a contingency) by the Payee to the
Payer (irrespective of the currency, place of payment or booking office
of the obligation) under any other agreement(s) between the Payee and
the Payer or instrument(s) or undertaking(s) issued or executed by one
party to, or in favour of, the other party (and the Other Agreement
Amount will be discharged promptly and in all respects to the extent it
is so set-off). X will give notice to Y of any set-off effected under
this Section 6(f). For this purpose, either the Early Termination
Amount or the Other Agreement Amount (or the relevant portion of such
amounts) may be converted by X into the currency in which the other is
denominated at the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith, to purchase the relevant
amount of such currency. If an obligation is unascertained, X may in
good faith estimate that obligation and set-off in respect of the
estimate, subject to the relevant party accounting to the other when
the obligation is ascertained. Nothing in this Section 6(f) shall be
effective to create a charge or other security interest. This Section
6(f) shall be without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which any
party is at any time otherwise entitled (whether by operation of law,
contract or otherwise).
(d) NEGATIVE INTEREST RATES. "Swap Transaction" means, for the purposes of
this provision concerning Negative Interest Rates, an interest rate
exchange or swap transaction, including transactions involving a single
currency or two or more currencies. All capitalized terms used in this
provision shall have the meanings as are ascribed to such terms in the
1991 ISDA Definitions as published by the International Swaps and
Derivatives Association, Inc. unless otherwise defined herein.
(i) FLOATING AMOUNTS. Party A and Party B agree that, if with
respect to a Calculation Period for a Swap Transaction either
party is obligated to pay a Floating Amount that is a negative
number (either due to a quoted negative Floating Rate or by
operation of a Spread that is subtracted from the Floating Rate),
the Floating Amount with respect to that party for that
Calculation Period will be deemed to be zero, and the other party
will pay to that party the absolute value of the negative Floating
Amount as calculated, in addition to any amount otherwise owed by
the other party for that Calculation Period with respect to that
Swap Transaction, on the Payment Date that the Floating Amount
would have been due if it had been a positive number. Any amounts
paid by the other party with respect to the absolute value of a
negative Floating Amount will be paid to such account as the
receiving party may designate (unless such other party gives
timely notice of a reasonable objection to such designation) in
the currency in which that Floating Amount would have been paid if
it had been a positive number (and without regard to the currency
in which the other party is otherwise obligated to make payments).
(ii) COMPOUNDING. Party A and Party B agree that, if with respect
to one or more Compounding Periods for a Swap Transaction where
"Compounding" or "Flat Compounding" is specified to be applicable
the Compounding Period Amount, the Basic Compounding Period Amount
or the Additional Compounding Period Amount is a negative number
(either due to a quoted negative Floating Rate or by operation of
a Spread that is subtracted from the Floating Rate), then the
Floating Amount for the Calculation Period in which that
Compounding Period or those Compounding Periods occur will be
either the sum of all Compounding Period Amounts or the sum of all
the Basic Compounding Period Amounts and all the Additional
Compounding Period Amounts in that Calculation Period (whether
positive or negative). If such sum is positive, then the Floating
Rate Payer with respect to the Floating Amount so calculated will
pay the Floating Amount to the other party. If such sum is
negative, the Floating Amount with respect to the party that would
be obligated to pay that Floating Amount will be deemed to be
zero, and the other party will pay to that party the absolute
value of the negative Floating Amount as calculated, such payment
to be made in accordance with (i) above.
(e) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to
the other on the day on which it enters into a Transaction that (absent
a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for the Transaction):
(i) NON-RELIANCE. It is acting for its own account, and it has
made its own independent decisions to enter into that Transaction
and as to whether that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisors as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice being
understood that information and explanations related to the terms
and conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. It has
not received from the other party any assurance or guarantee as to
the expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming and assumes, the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as an advisor to it in respect of that
Transaction.
(iv) NO COMMITMENT TO UNWIND. Neither party has committed to
unwind that Transaction.
(f) ADDITIONAL REPRESENTATIONS. Party A and Party B each represents and
warrants to the other (which representations shall be deemed repeated
upon entering into a Transaction) that:
(1) LINE OF BUSINESS. It has entered into this Agreement and each
Transaction in conjunction with its line of business (including
financial intermediation services) or the financing of its
business.
(2) ELIGIBLE CONTRACT PARTICIPANT. It constitutes an "eligible
contract participant" within the meaning of Section 1a(12) of
the U.S. Commodity Exchange Act, as amended; this Agreement and
each Transaction hereunder is subject to individual negotiation
by each party; and, neither this Agreement nor any Transaction
hereunder will be executed or traded on a "trading facility"
within the meaning of Section 1a(33) of the U.S. Commodity
Exchange Act, as amended.
(3) MASTER AGREEMENT. This Agreement shall be a "master agreement"
for purposes of 11 U.S.C.[ ] 101(53B) and 12 U.S.C.[ ] 1821(c)(8
(D)(vii), or any successor legislation.
(g) EQUIVALENCY CLAUSE. For the purpose of disclosure pursuant to the
Interest Act (Canada), the yearly rate of interest to which any rate of
interest payable under this Agreement that is calculated on any basis
other than a full calendar year is equivalent may be determined by
multiplying such rate by a fraction the numerator of which is the
actual number of days in the calendar year in which such yearly rate of
interest is to be ascertained and the denominator of which is the
number of days comprising such other basis.
(h) ADDITIONAL DEFINITIONS. The following additional definition will be
added to Section 14 of the Agreement:
"CREDIT AGREEMENT" shall mean, that certain second amended and
restated credit agreement dated as of July 20, 2001 among Party B
(as borrower), certain of its subsidiaries (as guarantors), the
lenders identified therein (including Party A), Bank of America,
N.A. (as Agent) and Credit Lyonnais, New York Branch, Party A and
Fleet National Bank (as co-syndication agents), as the same may be
amended, supplemented, revised, restated or replaced from time to
time.
(i) ADDITIONAL PARTY B REPRESENTATIONS. Party B hereby represents and
warrants to Party A (which representations shall be deemed repeated
each time a Transaction is entered into pursuant hereto) that:
(1) the security interests in collateral granted to Party A under
the Credit Support Documents shall secure the obligations of
Party B to Party A under this Agreement.; and
(2) each transaction entered into hereto is a Hedging Agreement (as
such term is defined in the Credit Agreement).
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized representative(s) as of the date hereof.
THE BANK OF NOVA SCOTIA APRIA HEALTHCARE GROUP INC.
By: /s/ XXXXXX XXXXXXXXXXXXX By: /s/ XXXXX X. XXXXX
------------------------ --------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx Name: Xxxxx X. Xxxxx
Title: Director Title: Chief Financial Officer
EXHIBIT A
[LETTERHEAD OF COUNSEL TO PARTY B]
[Date]
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Dear Sirs:
Re: [Company Name]
This opinion is furnished to you pursuant to Part 3 of the Schedule to
the Master Agreement dated as of the ____ day of _________, ____ and the
Transaction entered into pursuant thereto, confirmed by confirmation dated
__________________ (the "Agreement") made between [Company Name] (the
"Counterparty") and The Bank of Nova Scotia.
We have acted as counsel to the Counterparty in connection with the
preparation, execution and delivery of the Agreement. In that connection we have
examined such documents and considered such questions of law as we have deemed
necessary or appropriate for the opinion expressed herein.
Based on the foregoing we are of the opinion that:
1. The Counterparty is duly incorporated and organized and validly
existing under the laws of its jurisdiction of incorporation and has
full power and authority to execute and deliver the Agreement and to
perform its obligations thereunder.
2. The execution, delivery and performance of the Agreement by the
Counterparty has been duly authorized by all necessary corporate action
of the Counterparty and will not conflict with or result in a breach of
the articles or by-laws of the Counterparty, or of any indenture,
agreement or other document or instrument to which the Counterparty is
a party or by which it is bound or any order of any court or any law or
regulation applicable to the Counterparty.
3. All consents, authorizations, appropriations and approvals requisite
for the Counterparty's due execution, delivery and performance of the
Agreement have been duly obtained and remain in full force and effect
and no action by, and no notice to or filing with any legislature,
government, governmental authority or regulatory body is required for
such execution, delivery or performance.
4. The Agreement is a legal, valid and binding obligation of the
Counterparty, enforceable against the Counterparty in accordance with
its terms subject to the qualification that the enforceability of the
Agreement may be limited by bankruptcy, insolvency and other similar
laws of general application affecting the enforcement of creditors'
rights generally.
Yours truly,
