Exhibit 10
MASTER AGREEMENT
dated as of July 18, 2001
FIRST UNION NATIONAL BANK and MATRIA HEALTHCARE, INC.
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in
each Confirmation to be made by it, subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date
for value on that date in the place of the account
specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds and
in the manner customary for payments in the required currency.
Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation
unless otherwise specified in the relevant Confirmation or
elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject
to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that
no Early Termination Date in respect of the relevant
Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in
this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of branches or offices through which the parties make
and receive payments or deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into) that:
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the
laws of the jurisdiction of its organization or incorporation
and, if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is
a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this
Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary
action to authorize such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable
to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual
restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a
party have been obtained and are in full force and effect and
all conditions of any such consents have been complied with;
and
(v) Obligations Binding. Its obligations under this Agreement and
any Credit Support Document to which it is a party constitute
its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:
(a) Furnish Specified Information. It will deliver to the other party any
forms, documents or certificates specified in the Schedule or any Confirmation
by the date specified in the Schedule or such Confirmation or, if none is
specified, as soon as reasonably practicable.
(b) Maintain Authorizations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(d) required to be made by it if such
failure is not remedied on or before the third Local Business
Day after notice of such failure is given to the party.
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation
to make any payment under this Agreement or delivery under
Section 2(a)(i) or 2(d) or to give notice of a Termination
Event) to be complied with or performed by the party in
accordance with this Agreement if such failure is not remedied
on or before the thirtieth day after notice of such failure is
given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of
such party to comply with or perform any agreement or
obligation to be complied with or performed by it in
accordance with any Credit Support Document if such
failure is continuing after any applicable grace period
has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance
with its terms) prior to the satisfaction of all
obligations of such party under each Transaction to which
such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated or deemed
to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading
in any material respect when made or repeated or deemed to
have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable
notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or delivery
due on the last payment, delivery or exchange date of, or
any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local
Business Days if there is no applicable notice requirement
or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or
such action is taken by any person or entity appointed or
empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence
of (1) a default, event of default or other similar
condition or event (however described) in respect of such
party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness
of any of them (individually or collectively) in an
aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted
in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable
under such agreements or instruments, before it would
otherwise have been due and payable or (2) a default by such
party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more
payments on the due date thereof in an aggregate amount of
not less than the applicable Threshold Amount under such
agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to
pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors'
rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding
or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making
of an order for its winding-up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof; (5)
has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its
assets; (7) has a secured party take possession of all or
substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its
assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter; (8) causes
or is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its
assets to, another entity and, at the time of such
consolidation, amalgamation, merger or transfer:
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a
party by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (ii) below or an
Additional Termination Event if the event is specified pursuant to (iii) below:
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is
entered into, or due to the promulgation of, or any change in,
the interpretation by any court, tribunal or regulatory
authority with competent jurisdiction of any applicable law
after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party
(which will be the Affected Party):
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which
the party (or such Credit Support Provider) has under any
Credit Support Document relating to such Transaction;
(ii) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its
assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee
entity is materially weaker than that of X, such Credit Support
Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X
or its successor or transferee, as appropriate, will be the
Affected Party); or
(iii) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event,
the Affected Party or Affected Parties shall be as specified
for such Additional Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each
Affected Transaction and will also give such other information
about that Termination Event as the other party may reasonably
require.
(ii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) occurs and there are two Affected Parties, each
party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section
6(b)(i) on action to avoid that Termination Event.
(iii) Right to Terminate. If:
(1) an agreement under Section 6(b)(ii) has not been
effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice
under Section 6(b)(i); or
(2) an Illegality other than that referred to in
Section 6(b)(ii), a Credit Event Upon Merger or an
Additional Termination Event occurs,
either party in the case of an Illegality, any Affected Party in the
case of an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on
the date so designated, whether or not the relevant Event of
Default or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under
Section 2(a)(i) or 2(d) in respect of the Terminated
Transactions will be required to be made, but without
prejudice to the other provisions of this Agreement. The
amount, if any, payable in respect of an Early Termination
Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following
the occurrence of an Early Termination Date, each party will
make the calculations on its part, if any, contemplated
by Section 6(e) and will provide to the other party a
statement (1) showing, in reasonable detail, such
calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2)
giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of
any Early Termination Date under Section 6(e) will be
payable on the day that notice of the amount payable is
effective (in the case of an Early Termination Date which is
designated or occurs as a result of an Event of Default) and
on the day which is two Local Business Days after the day
on which notice of the amount payable is effective (in the
case of an Early Termination Date which is designated as a
result of a Termination Event). Such amount will be paid
together with (to the extent permitted under applicable
law) interest thereon (before as well as after judgment),
from (and including) the relevant Early Termination Date
to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days
elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss," and a payment method,
either the "First Method" or the "Second Method." If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method," as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from
an Event of Default:
(1) First Method and Market Quotation. If the First
Method and Market Quotation apply, the Defaulting
Party will pay to the Non-defaulting Party the
excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and
the Unpaid Amounts owing to the Non-defaulting Party
over (B) the Unpaid Amounts owing to the Defaulting
Party.
(2) First Method and Loss. If the First Method and
Loss apply, the Defaulting Party will pay to
the Non-defaulting Party, if a positive number, the
Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, an amount will
be payable equal to (A) the sum of the Settlement
Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the
Unpaid Amounts owing to the Non-defaulting Party
less (B) the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to
the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results
from a Termination Event:
(1) One Affected Party. If there is one Affected Party,
the amount payable will be determined in accordance
with Section 6(e)(i)(3), if Market Quotation
applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party
will be deemed to be references to the Affected
Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all
the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected
Parties:
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of
the Terminated Transactions, and an amount
will be payable equal to (I) the sum of (a)
one-half of the difference between the
Settlement Amount of the party with the
higher Settlement Amount ("X") and the
Settlement Amount of the party with the
lower Settlement Amount ("Y") and (b) the
Unpaid Amounts owing to X less (II) the
Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine
its Loss in respect of this Agreement (or,
if fewer than all the Transactions are being
terminated, in respect of all Terminated
Transactions) and an amount will be payable
equal to one-half of the difference between
the Loss of the party with the higher Loss
("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to
X; if it is a negative number, X will pay the absolute value
of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under
this Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such amount
is payable for the loss of bargain and the loss of protection
against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this Agreement
may be transferred (whether by way of security or otherwise) by either party
without the prior written consent of the other party, except that:
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall be entered
into as soon as practicable and may be executed and delivered
in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which
in each case will be sufficient for all purposes to evidence a
binding supplement to this Agreement. The parties will specify
therein or through another effective means that any such
counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any
Transaction, including, but not limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile
machine);
(iv) if sent by certified or registered mail (airmail, if overseas)
or the equivalent (return receipt requested), on the date that
mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
11. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New
York and the United States District Court located in the Borough
of Manhattan in New York City, if this Agreement is expressed
to be governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives
any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that such court does not have any
jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
12. Definitions
As used in this Agreement:
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, all Transactions affected by the occurrence of such
Termination Event and (b) with respect to any other Termination Event, all
Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"consent" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iii).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"law" includes any treaty, law, rule or regulation and "lawful" and "unlawful"
will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located, (c) in
relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address for notice provided
by the recipient and, in the case of a notice contemplated by Section 2(b), in
the place where the relevant new account is to be located and (d) in relation to
Section 5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, an amount that party reasonably
determines in good faith to be its total losses and costs (or gain, in which
case expressed as a negative number) in connection with this Agreement or that
Terminated Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before the
relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 9. A party will determine its Loss as of the relevant Early Termination
Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. A party may (but need not) determine
its Loss by reference to quotations of relevant rates or prices from one or more
leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
`Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:
(a) the Market Quotations (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for which a Market
Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into 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) 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.
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be applicable, a
Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to all; Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that be :came payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or prior to such
Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of that which was (or
would have been) required to be delivered as of the originally scheduled date
for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been required to have
been paid or performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. The fair market value
of any obligation referred to in clause; (b) above shall be reasonably
determined by the party obliged to make the determination under Section 6(e) or,
if each party is so obliged, it shall be the average of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
FIRST UNION NATIONAL BANK MATRIA HEALTHCARE, INC.
(Name of Party) (Name of Party)
By: /s/ Xxx X. Xxxx /s/ Xxxxxx X. Xxxxxxx
----------------------------- --------------------------------
Name: Xxx X. Xxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President Title: VP, Finance and CFO
Date: 7/30/01 Date: 7/24/01
1
SCHEDULE
to the
MASTER AGREEMENT
dated as of July 18, 2001 between
FIRST UNION NATIONAL BANK ("Party A")and MATRIA HEALTHCARE, INC. ("Party B")
Part 1. Termination Provisions
(a) "Specified Entity" means each party's Affiliates for purposes of
Section 5(a)(v).
(b) "Specified Transaction" has its meaning as defined in Section 12.
(c) "Cross Default" applies to both parties. With respect to Party B,
"Cross Default" is amended by inserting at the end of Section 5(a)(vi):
"or (3) any default, event of default or other similar condition or
event (however described) under any Financial Agreement (as defined in
the Schedule)."
"Specified Indebtedness" means any obligation (whether present, future,
contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money or relating to the payment or delivery of
funds, securities or other property (including, without limitation,
collateral), other than indebtedness in respect of any bank deposits
received in the ordinary course of business by any foreign branch of a
party the repayment of which is prevented, hindered or delayed by any
governmental or regulatory action or law unrelated to the financial
condition or solvency of such party or that foreign branch.
"Threshold Amount" means, with respect to Party A, an amount (including
its equivalent in another currency) equal to the higher of $10,000,000
or 2% of its stockholders' equity as reflected on its most recent
financial statements or call reports, and with respect to Party B,
$250,000, provided that for any Specified Indebtedness payable by Party
B (or any Credit Support Provider of Party B) to Party A or to any of
Party A's Affiliates, Threshold Amount means any amount of such
Specified Indebtedness.
(d) "Credit Event Upon Merger" applies to both parties.
(e) "Automatic Early Termination" does not apply to either party.
(f) Payments on Early Termination. Except as otherwise provided in this
Schedule, "Market Quotation" and the "Second Method" apply. In the case
of any Terminated Transaction that is, or is subject to, any
unexercised option, the words "economic equivalent of any payment or
delivery" appearing in the definition of "Market Quotation" shall be
construed to take into account the economic equivalent of the option.
(g) "Additional Termination Event" does not apply to either party.
(h) Events of Default. An Event of Default shall not occur with respect
to a party under Section 5(a)(v)(1) or (2) or Section 5(a)(vi)
when the failure to pay or deliver, or the default, event of
default or other similar condition or event, as the case may be,
arises solely (i) out of a wire transfer problem or an operational
or administrative error or omission (so long as the required funds
or property required to make that payment or delivery were otherwise
available to that party), or (ii) from the general unavailability of
the relevant currency due to exchange controls or other similar
governmental action, but in either case only if the payment or
delivery is made within three Local Business Days after the problem
has been corrected, the error or omission has been discovered or the
currency becomes generally available.
Part 2. Tax Provisions
(a) Tax Representations.
(i) Party A represents at all times hereunder that (A) it is a national
banking association organized or formed under the laws of the United
States, and (B) it is a United States resident for United States
federal income tax purposes.
(ii) Party B represents at all times hereunder that (A) it is organized
or formed under the laws of the State of Delaware, and (B) it is (or,
if Party B is disregarded for United States federal income tax
purposes, its beneficial owner is) a United States resident for United
States federal income tax purposes.
(b) Tax Forms.
(i) Each party agrees to deliver to the other party the tax forms
specified below with respect to it at the following times: before the
first Payment Date under this Agreement; promptly upon reasonable
demand by the other party; and promptly upon learning that any such
form previously provided by the party has become obsolete or incorrect.
(A) Tax Forms to be Delivered by Party A:
None specified.
(B) Tax forms to be Delivered by Party B:
(I) If Party B is (or, if Party B is disregarded for United
States federal income tax purposes, its beneficial owner is)
treated as a corporation for United States federal income tax
purposes whose name includes "Incorporated", "Inc.",
"Corporation", "P.C.", "Insurance Company" "Indemnity
Company", "Reinsurance Company", or "Assurance Company":
None specified, unless any amount payable to Party B under
this Agreement is to be paid to an account outside the United
States, in which case the tax form to be delivered by Party B
shall be a correct, complete and duly executed U.S. Internal
Revenue Service Form W-9 (or successor thereto) that
eliminates U.S. federal backup withholding tax on payments to
Party B under this Agreement.
(II) In all other cases:
A correct, complete and duly executed U.S. Internal Revenue
Service Form W-9 (or successor thereto) that eliminates U.S.
federal backup withholding tax on payments to Party B under
this Agreement.
(ii) In addition, each party agrees to deliver to the other party, upon
reasonable demand by such other party, any other tax form that may be
required or reasonably requested in writing in order to allow such
other party to make a payment under this Agreement (or under any Credit
Support Document) without any deduction or withholding for or on
account of any tax imposed by any government or other taxing authority
in respect of any such payment (other than a stamp, registration,
documentation or similar tax), or with such deduction or withholding at
a reduced rate, which form shall be correct, complete and duly
executed.
(c) Withholding Tax Liability. A breach of a representation under paragraph
(a) above, or a failure to deliver a required tax form in accordance
with paragraph (b) above, by a party hereunder (the "defaulting payee")
may result in a tax liability on the part of the other party (the
"payor"), as required by the United States Internal Revenue Code and
regulations thereunder, for withholding or backup withholding on any
payment by the payor to the defaulting payee under this Agreement (or
under any Credit Support Document), including a liability to remit to
the U.S. Treasury Department the required amount of withholding and to
pay interest and penalties to the U.S. Treasury Department for amounts
not withheld.
Accordingly, if any such breach or failure by the defaulting payee
results in any such tax liability, then (i) any amount so withheld and
remitted to the U.S. Treasury Department shall discharge the payor's
obligation under this Agreement (or under any Credit Support Document)
to pay to the defaulting payee the portion of any payment so withheld
and remitted (with the payor having no obligation to "gross up" any of
its payments for such withheld amounts), and (ii) if any tax liability
resulting from the defaulting payee's breach or failure is assessed
directly against the payor in respect of any amounts not withheld, the
defaulting payee shall indemnify the payor on demand for the amount of
such tax liability (including interest and penalties). However, any
such breach or failure by the defaulting payee shall not be an "Event
of Default" or a "Potential Event of Default" under this Agreement
unless the defaulting payee fails to so indemnify the payor.
Part 3. Documents
(a) Delivery of Documents. When it delivers this Agreement, each party
shall also deliver its Closing Documents to the other party in form and
substance reasonably satisfactory to the other party. For each
Transaction, a party shall deliver, promptly upon request, a duly
executed incumbency certificate for the person(s) executing the
Confirmation for that Transaction on behalf of that party.
(i) For Party A, "Closing Documents" means a duly executed certificate
of the secretary or assistant secretary of Party A certifying the name
and true signature of each person authorized to execute this Agreement
and enter into Transactions for Party A.
(ii) For Party B, "Closing Documents" means an opinion of counsel
covering Party B's Basic Representations under Section 3(a) as they
relate to this Agreement, or in lieu thereof, (A) a copy, certified by
the secretary or assistant secretary of Party B, of the resolutions of
Party B's board of directors authorizing the execution, delivery and
performance by Party B of this Agreement and authorizing Party B to
enter into Transactions hereunder and (B) a duly executed certificate
of the secretary or assistant secretary of Party B certifying the name,
true signature and authority of each person authorized to execute this
Agreement and enter into Transactions for Party B.
Part 4. Miscellaneous
(a) Addresses for Notices. For purposes of Section 10(a) of this Agreement,
all notices to a party shall, with respect to any particular
Transaction, be sent to its address, telex number or facsimile number
specified in the relevant Confirmation, provided that any notice under
Section 5 or 6 of this Agreement, and any notice under this Agreement
not related to a particular Transaction, shall be sent to a party at
its address, telex number or facsimile number specified below.
To Party A:
FIRST UNION NATIONAL BANK
000 Xxxxx Xxxxxxx, XX-0
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Senior Vice President, Risk Management
Fax: (000) 000-0000
Phone: (000) 000-0000
To Party B:
MATRIA HEALTHCARE, INC.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
(b) "Calculation Agent" means Party A.
(c) "Credit Support Document" means each document which by its terms
secures, guarantees or otherwise supports Party B's obligations
hereunder from time to time, whether or not this Agreement, any
Transaction, or any type of Transaction entered into hereunder is
specifically referenced or described in any such document.
"Credit Support Default" is amended by adding at the end of Section
5(a)(iii)(1):
", any default, event of default or other similar condition or event
(however described) exists under any Credit Support Document, any
action is taken to realize upon any collateral provided to secure such
party's obligations hereunder or under any Transaction, or the other
party fails at any time to have a valid and perfected first priority
security interest in any such collateral;"
(d) "Credit Support Provider" means each party to a Credit Support Document
that provides or is obligated to provide security, a guaranty or other
credit support for Party B's obligations hereunder.
(e) Governing Law. This Agreement will be governed by and construed in
accordance with the law (and not the law of conflicts) of the State
of New York.
(f) Waiver of Jury Trial. To the extent permitted by applicable law, each
party irrevocably waives any and all right to trial by jury in any
legal proceeding in connection with this Agreement, any Credit Support
Document to which it is a party, or any Transaction.
(g) Netting of Payments. If payments are due by each party on the same day
under two or more Transactions, then Section 2(c)(ii) will not apply to
those payments if a party gives notice to the other party on or before
the second New York Business Day before that payment date stating that
those payments will be netted or, if given by the Calculation Agent,
stating the net amount due.
(h) "Affiliate" has its meaning as defined in Section 12.
Part 5. Other Provisions
(a) 2000 ISDA Definitions. This Agreement and each Transaction are
subject to the 2000 ISDA Definitions (including its Annex and NCU
Supplement) published by the International Swaps and Derivatives
Association, Inc. (together, the "2000 ISDA Definitions") and
will be governed by the provisions of the 2000 ISDA Definitions.
The provisions of the 2000 ISDA Definitions are incorporated by
reference in, and shall form part of, this Agreement and each
Confirmation. Any reference to a "Swap Transaction" in the 2000
ISDA Definitions is deemed to be a reference to a "Transaction"
for purposes of this Agreement or any Confirmation, and any
reference to a "Transaction" in this Agreement or any Confirmation
is deemed to be a reference to a "Swap Transaction" for purposes
of the 2000 ISDA Definitions. The provisions of this Agreement
(exclusive of the 2000 ISDA Definitions) shall prevail in the event
of any conflict between such provisions and the 2000 ISDA Definitions.
(b) Scope of Agreement. Any Specified Transaction now existing or
hereafter entered into between the parties (whether or not evidenced
by a Confirmation) which constitutes (i) a swap, cap, collar,
floor or option on interest rates in which the transaction is
denominated U.S. Dollars, (ii) any other interest rate
derivatives transaction denominated in U.S. Dollars, (iii) any
option on or with respect to any of the foregoing, or (iv) any
combination of any of the foregoing, shall constitute a
"Transaction" under this Agreement and shall be subject to,
governed by, and construed in accordance with the terms of this
Agreement, unless the confirming document(s) for that Specified
Transaction provide(s) otherwise. In addition, any Specified
Transaction between the parties evidenced by a Confirmation
that by its terms specifies that it is subject to or governed by
this Agreement (or an ISDA Master Agreement between the
parties), whether entered into before, on or after the date
of this Agreement, shall constitute a Transaction under this
Agreement and shall be subject to, governed by, and construed in
accordance with the terms of this Agreement.
(c) Additional Representations. Section 3 is amended by adding the
following Sections 3(e), (f), and (g):
"(e) Non-Reliance. For any Relevant Agreement: (i) it acts as principal
and not as agent, (ii) it acknowledges that the other party acts only
arm's length and is not its agent, broker, advisor or fiduciary in any
respect, and any agency, brokerage, advisory or fiduciary services that
the other party (or any of its affiliates) may otherwise provide to the
party (or to any of its affiliates) excludes the Relevant Agreement,
(iii) it is relying solely upon its own evaluation of the Relevant
Agreement (including the present and future results, consequences,
risks, and benefits thereof, whether financial, accounting, tax, legal,
or otherwise) and upon advice from its own professional advisors, (iv)
it understands the Relevant Agreement and those risks, has determined
they are appropriate for it, and willingly assumes those risks, and (v)
it has not relied and will not be relying upon any evaluation or advice
(including any recommendation, opinion, or representation) from the
other party, its affiliates or the representatives or advisors of the
other party or its affiliates (except representations expressly made in
the Relevant Agreement or an opinion of counsel required thereunder).
"Relevant Agreement" means this Agreement, each Transaction, each
Confirmation, any Credit Support Document, and any agreement (including
any amendment, modification, transfer or early termination) between the
parties relating thereto or to any Transaction.
(f) Eligibility. It is an "eligible contract participant" within the
meaning of the Commodity Exchange Act (as amended by the Commodity
Futures Modernization Act of 2000).
(g) ERISA. It is not (i) an employee benefit plan (an "ERISA Plan") as
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), subject to Title 1 of ERISA of Section
4975 of the Internal Revenue Code of 1986, as amended, (ii) a person or
entity acting on behalf of an ERISA Plan, or (iii) a person or entity
the assets of which constitute assets of an ERISA Plan.
(d) Set-off. Any amount ("Early Termination Amount") payable to one
party ("Payee") by the other party ("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)(ii)
has occurred, will, at the option of the party ("X") other than the
Defaulting Party or the Affected Party (and without prior notice to
the Defaulting Party or the Affected Party), be reduced by means of
set off against any amount(s) ("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 or to any Affiliate of 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 between the Payee and any Affiliate of the
Payer) or instrument(s) or undertaking(s) issued or executed by
the Payee to, or in the favor of, the Payer or any Affiliate of
the Payer (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 the other party of any set-off effected under
this paragraph.
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 would be able, acting in a
reasonable manner and in good faith, to purchase the relevant amount of
such currency. The term "rate of exchange" includes, without
limitation, any premiums and costs of exchange payable in connection
with the purchase of or conversion into the relevant currency.
Nothing in this paragraph shall be effective to create a charge or
other security interest. This paragraph 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).
(e) Change of Account. Any account designated by a party pursuant to
Section 2(b) shall be in the same legal and tax jurisdiction as the
original account.
(f) Recorded Conversations. Each party and any of its Affiliates may
electronically record any of its telephone conversations with the other
party or with any of the other party's Affiliates in connection with
this Agreement or any Transaction, and any such recordings may be
submitted in evidence in any proceeding to establish any matters
pertinent to this Agreement or any Transaction.
(g) Confirmation Procedures. Upon receipt thereof, Party B shall examine
the terms of each Confirmation sent by Party A, and unless Party B
objects to the terms within three New York business days after receipt
of that Confirmation, those terms shall be deemed accepted and correct
absent manifest error, in which case that Confirmation will be
sufficient to form a binding supplement to this Agreement
notwithstanding Section 8(e)(ii) of this Agreement.
(h) Covenants of Financial Agreements.
(i) Party B shall provide Party A at all times hereunder with the same
covenant protection as Party A requires of Party B under Financial
Agreements. Therefore, in addition to the Cross Default provisions of
this Agreement, and notwithstanding the satisfaction of any obligation
or promise to pay money to Party A under any Financial Agreement, or
the termination or cancellation of any Financial Agreement, Party B
hereby agrees to perform, comply with and observe for the benefit of
Party A hereunder all affirmative and negative covenants contained in
each Financial Agreement applicable to Party B (excluding any
obligation or promise to pay money under any Financial Agreement) at
any time Party B has any obligation (whether absolute or contingent)
under this Agreement.
(ii) For purposes hereof: (A) the affirmative and negative covenants of
each Financial Agreement applicable to Party B (together with related
definitions and ancillary provisions, but in any event excluding any
obligation or promise to pay money under any Financial Agreement) are
incorporated (and upon execution of any future Financial Agreement,
shall automatically be incorporated) by reference herein (mutatis
mutandis); (B) if other lenders or creditors are parties to any
Financial Agreement, then references therein to the lenders or
creditors shall be deemed references to Party A; and (C) for any such
covenant applying only when any loan, other extension of credit,
obligation or commitment under the Financial Agreement is outstanding,
that covenant shall be deemed to apply hereunder at any time Party B
has any obligation (whether absolute or contingent) under this
Agreement
(iii) Notwithstanding the foregoing, if the incorporation of any
provision by reference from any Financial Agreement would result in the
violation by Party B of the terms of that Financial Agreement, or be in
violation of any law, rule or regulation (as interpreted by any court
of competent jurisdiction), then this Agreement shall not incorporate
that provision.
"Financial Agreement" means each existing or future agreement or
instrument relating to any loan or extension of credit from Party A to
Party B (whether or not anyone else is a party thereto), as the same
exists when executed and without regard to (i) any termination or
cancellation thereof or Party A ceasing to be a party thereto (whether
as a result of repayment thereof or otherwise), or (ii) unless
consented to in writing by Party A, any amendment, modification,
addition, waiver or consent thereto or thereof.
(i) Transfer. Notwithstanding anything contained in Section 7 of this
Agreement, if Party A's rights in any loan or extension of credit
under any Financial Agreement are sold, assigned or otherwise
transferred to any purchaser, assignee or transferee to which Party
A may lawfully make such sale, assignment or transfer, then Party A
may transfer without recourse its rights and obligations in or
under this Agreement (and any Credit Support Document) to any such
purchaser, assignee or transferee, provided that Party B is
provided with written notice of such transfer and a written
acknowledgement of the purchaser, assignee or transferee stating
that it has acquired such rights and obligations of Party A and
is bound by the terms of this Agreement (and any Credit Support
Document) as Party A's successor hereunder (and thereunder).
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized signatories as of the date hereof.
FIRST UNION NATIONAL BANK
By: __________________________________
Name:
Title:
MATRIA HEALTHCARE, INC.
By: ___________________________________
Name:
Title:
