Exhibit 99.5
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of June 24, 2004, among HEALTHSOUTH Corporation, a Delaware corporation (the
"Company"), and The Bank of Nova Scotia Trust Company of New York, as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of May 22, 2002, providing for
the issuance of an aggregate principal amount of $1.0 billion of 7-5/8% Senior
Notes due 2012 (the "Notes");
WHEREAS, the Special Committee of the Board of Directors of the
Company has determined that it is in the best interests of the Company to
authorize and approve the amendments to the Indenture (the "Proposed
Amendments") set forth in this Supplemental Indenture;
WHEREAS, Section 8.02 of the Indenture provides that the Company and
the Trustee may amend the Indenture with the written consent of the Holders of
a majority in principal amount of the then outstanding Notes ("Requisite
Consent");
WHEREAS, the Company has distributed a Consent Solicitation Statement,
dated March 16, 2004 as supplemented and amended on April 29, 2004 and June 8,
2004 (as supplemented and amended, the "Solicitation Statement"), and
accompanying Consent Forms to the Holders of the Notes in connection with the
Proposed Amendments as described in the Solicitation Statement;
WHEREAS, the Requisite Consent to the Proposed Amendments to the
provisions of the Indenture have been received by the Company and the Trustee
and all other conditions precedent, if any, provided for in the Indenture
relating to the execution of this Supplemental Indenture have been complied
with as of the date hereof; and
WHEREAS, the execution and delivery of this Supplemental Indenture
have been duly authorized by the Company and all conditions and requirements
necessary to make this instrument a valid and binding agreement have been duly
performed and complied with;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. DEFINITIONS.
(a) Section 1.01 of the Indenture is hereby amended to include the
following new definitions:
"Digital Hospital" means the planned 219-bed acute care
hospital located on Highway 280 in Birmingham, Alabama replacement for
the HealthSouth Medical Center.
"Digital Hospital Transaction" means any sale, joint venture,
sale leaseback or other related financing transaction involving the
Digital Hospital.
"Fiscal Year" means the twelve month period ending on
December 31.
"Historical Reports" means the Annual Report(s) on Form 10-K
containing audited financial statements required to be filed with the
Commission for any Fiscal Year ended on or prior to December 31, 2003.
"Report Date" means the date on which the Company shall
deliver the Supplemental Report.
"Senior Notes" means our 6.875% Senior Notes due 2005, 7.000%
Senior Notes due 2008, 7.375% Senior Notes due 2006, 8.375% Senior
Notes due 2011 and 8.500% Senior Notes due 2008.
"Senior Subordinated Notes" means our 10.750% Senior
Subordinated Notes due 2008.
"Supplemental Report" means the Annual Report on Form 10-K
for the Fiscal Year ending December 31, 2004, containing audited
financial statements required to be filed with the Commission pursuant
to the Exchange Act for the Fiscal Year ending on December 31, 2004.
(b) Section 1.01 of the Indenture is hereby amended to replace the
period at the end of the existing definition of "Attributable Indebtedness"
with a semicolon and to insert thereafter the following new language:
"and provided further, that Attributable Indebtedness
incurred in connection with the Digital Hospital Transaction shall be
limited to Indebtedness incurred on a recourse basis by the Company or
a Subsidiary of the Company (other than a Joint Venture formed for the
purpose of owning, running, operating or managing the Digital
Hospital) or Indebtedness with respect to which the Company or any
such Subsidiary is otherwise liable on a recourse basis."
(c) Section 1.01 of the Indenture is hereby amended to replace the
period at the end of the existing definition of "Refinancing Indebtedness" with
a semicolon and to insert thereafter the following new language:
" and provided further that: so long as (y) the Company
designates such Indebtedness as Refinancing Indebtedness and (z) the
net proceeds of such Refinancing Indebtedness are not used for any
purpose other than refinancing existing indebtedness or a repayment of
revolving Bank Debt, such Indebtedness shall constitute Refinancing
Indebtedness notwithstanding that it is not immediately applied to the
refunding, refinancing, repurchase or extension of other
Indebtedness."
(d) Section 1.01 of the Indenture is hereby amended to delete
the "and" at the end of existing clause (iv) of the existing
definition of "Permitted Investments", to replace the period at the
end of the existing clause (v) with a semicolon and to insert
thereafter the following new clause (vi):
"and (vi) any Investment arising from the transfer of assets
made pursuant to the Digital Hospital Transaction."
3. REPORTS. Section 4.02 of the Indenture is hereby amended by deleting
the section in its entirety and replacing it with the following:
"From and after the Report Date and for all periods ending on
or after December 31, 2005, whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding,
the Company shall file with the Commission, to the extent such filings
are accepted by the Commission, and shall furnish (within 15 days
after such filing) to the Trustee and to the Holders all quarterly and
annual reports and other information, documents and reports that would
be required to be filed with the Commission pursuant to Section 13 of
the Exchange Act if the Company were required to file under such
section. In addition to the foregoing, the Company shall file the
Historical Reports with the Commission on or prior to June 30, 2005
and the Supplemental Report on or prior to December 31, 2005. The
Company shall also furnish to the Trustee and to the Holders all other
quarterly and annual reports and other information, documents and
reports required to be filed with the Commission promptly after such
reports and other information and documents are filed with the
Commission. In addition, the Company shall make such information
available to prospective purchasers of the Notes, securities analysts
and broker-dealers who request it in writing. Delivery of such
reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers'
Certificates)."
4. LIMITATION ON EXISTING INDEBTEDNESS AND SUBSIDIARY PREFERRED STOCK.
Section 4.11(b) of the Indenture is hereby amended to delete the "and" at the
end of existing clause (v) and to replace the existing clause (vi) with the
following new clauses (vi) and (vii):
"(vi) the Company may incur Indebtedness consisting of Bank
Debt in an aggregate principal amount at any time outstanding not to
exceed $750,000,000; and (vii) the Subsidiaries of the Company may
incur Indebtedness, including all Refinancing Indebtedness incurred in
exchange for, or the net proceeds of which are applied to refund,
refinance or extend, any Indebtedness incurred pursuant to this clause
(vii), in an aggregate principal amount at any time outstanding not to
exceed $250,000,000, in addition to Existing Indebtedness and other
Indebtedness permitted to be incurred by Subsidiaries of the Company
pursuant to the foregoing clauses (ii) - (vi)."
5. EVENTS OF DEFAULT.
(a) Section 6.01(b) of the Indenture is hereby amended to insert the
following new language immediately after the word "redemption" in such section:
"or any right of Holders to require repurchase"
(b) Section 6.01(e) of the Indenture is hereby amended to insert the
following new language immediately following the semicolon at the end of
existing Section 6.01(e):
"provided however, that from and after the date upon which
this Supplemental Indenture becomes effective in accordance with the
terms of the Indenture, any such acceleration by holders of our Senior
Notes or Senior Subordinated Notes shall not constitute an Event of
Default under this Section 6.01(e) until (i) the trustee or the
requisite number of registered holders of such indebtedness have made
a demand for payment to the Company and (ii) the trustee or the
requisite number of registered holders of such indebtedness have
obtained a judgment from a court of competent jurisdiction ordering
the Company to pay all amounts owing under such other series of our
Senior Notes or Senior Subordinated Notes, as the case may be, that
has effectively accelerated such indebtedness in accordance with the
terms of the applicable indenture;"
(c) Section 6.01 of the Indenture is hereby amended to delete the word
"or" from the end of existing paragraph (f), to replace the period at the end
of existing paragraph (g) with a semi-colon and to include the following new
paragraphs (h) and (i):
"(h) the Company shall fail to file the Historical Reports
with the Commission on or prior to June 30, 2005; or
(i) the Report Date does not occur on or prior to December
31, 2005."
6. AMENDMENTS TO NOTES. Each of Exhibit A and Exhibit B to the
Indenture is hereby amended in full by substituting for each such exhibit,
Exhibit A and Exhibit B, respectively, to this First Supplemental Indenture.
7. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company. The Trustee accepts the
trusts created by the Indenture, as amended and supplemented by this
Supplemental Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as amended and supplemented by this Supplemental
Indenture.
11. RATIFICATION OF INDENTURE; SUPPLEMENTAL PART OF INDENTURE. Except
as specifically amended and supplemented by this Supplemental Indenture, the
Indenture shall remain in full force and effect and is hereby ratified and
confirmed. This Supplemental Indenture shall form a part of the Indenture for
all purposes, and every holder of a Note heretofore or hereafter authenticated
and delivered shall be bound hereby. This Supplemental Indenture shall become
effective as of the date hereof at such time as executed counterparts of this
Supplemental Indenture have been delivered by each party hereto to the other
party hereto; provided, however, that no provision of this Supplemental
Indenture shall be effective or binding on the parties hereto unless (i) such
provision complies with the Trust Indenture Act and (ii) Holders of the
requisite principal amount of Notes have provided consents (and not thereafter
validly revoked such consent) to such provision on or prior to the date hereof.
12. VALIDITY; ENFORCEABILITY. In case any provisions in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
13. THIRD-PARTY BENEFICIARY. Nothing in this Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto and
their successors under the Indenture and the Holders of the Notes, any benefit
or any legal or equitable right, remedy or claim under the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of June 24,
2004.
HEALTHSOUTH CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
General Counsel and Secretary
THE BANK OF NOVA SCOTIA TRUST COMPANY OF
NEW YORK, AS TRUSTEE
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
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[FORM OF AMENDED AND RESTATED SERIES A NOTE]
CUSIP No.:
HEALTHSOUTH CORPORATION
__% AMENDED AND RESTATED SENIOR NOTE DUE 20__
No. $
HEALTHSOUTH CORPORATION, a corporation incorporated in Delaware (the
"Company," which term includes any successor entity), for value received
promises to pay to CEDE & CO., or registered assigns, the principal sum of $ on
June 1, 20__.
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2002.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Amended and
Restated Note contained herein and the Indenture (as defined), which will for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Note to be signed manually or by facsimile by its duly authorized directors,
officers or other authorized signatories.
HEALTHSOUTH CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Date:
This is one of the __% Amended and Restated Senior Notes due 20__
referred to in the within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST COMPANY OF
NEW YORK, AS TRUSTEE
By: _______________________________
Name:
Title:
(REVERSE OF SECURITY)
__% AMENDED AND RESTATED SENIOR NOTE DUE 20__
1. Interest. HEALTHSOUTH CORPORATION, a corporation incorporated in
Delaware (the "Company"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above. Interest on the Notes will accrue
from the most recent date on which interest has been paid or duly provided for,
or if no interest has been paid, from the date of the original issuance of the
Notes. The Company will pay interest semi-annually in arrears on each Interest
Payment Date, commencing December 1, 2002. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to
the extent lawful from time to time on demand at the rate borne by the Notes.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at
the close of business on May 15 or November 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are canceled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Payments of principal and premium, if any, will be
made (on presentation of such Notes if in certificated form) in U.S. legal
tender; provided, however, that the Company may pay principal, premium, if any,
and interest by check payable in U.S. legal tender. The Company may deliver any
such interest payment by check mailed to the address of the Person entitled
thereto as such address will appear on the security register.
3. Paying Agents and Registrar. Initially, The Bank of Nova Scotia
Trust Company of New York (the "Trustee"), will act as Paying Agent and the
Trustee will act as Registrar. The Company may change any Paying Agents,
Registrar or co-Registrar without notice to the Holders. Neither the Company
nor any of its Subsidiaries or Affiliates may act as Paying Agent but may act
as Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture, dated
as of May 22, 2002 (as amended, restated or otherwise modified, the
"Indenture"), by and between the Company and the Trustee. This Note is one of a
duly authorized issue of Initial Notes of the Company designated as its ____%
Senior Notes due 20__ (the "Notes"), as amended and restated pursuant to the
First Supplemental Indenture, dated June 24, 2004, to the Indenture. The Notes
include the Initial Notes and the Exchange Notes issued pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for
a statement of them. The Notes are general unsecured obligations of the
Company.
5. Redemption. The Notes will be redeemable, in whole or in part, at
the option of the Company at any time at a redemption price equal to 100% of
the principal amount of the Notes to be redeemed plus any applicable Make-Whole
Premium (together, the "Redemption Price") plus accrued interest thereon to the
date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of the principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.50%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Make-Whole Premium" means, for any Note to be redeemed, a premium
equal to the excess (if any) of (i) as determined by a Quotation Agent, the sum
of the present values of the remaining scheduled payments of principal and
interest on such Note discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate over (ii) 100% of the unpaid principal amount of such Note. If a
redemption date does not fall on an interest payment date, then, with respect
to the interest payment immediately succeeding the redemption date, only the
unaccrued portion of such interest payment as of the redemption date shall be
included in the calculation pursuant to clause (i) above.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means (i) each of UBS Warburg LLC,
Deutsche Bank Securities Inc. and Banc of America Securities LLC and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by such Reference Treasury Dealer, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing by such Reference Treasury Dealer at 5:00
p.m. on the third business day preceding such redemption date.
If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among
the outstanding Notes on a pro rata basis, by lot or by any other method
permitted in the Indenture. On and after the redemption date, interest will
cease to accrue on the Notes or portions thereof called for redemption.
The Notes will not be entitled to any sinking fund.
6. Notice of Redemption. Notice of redemption under paragraph 5 of
this Note will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then the Notes called for redemption
will cease to bear interest from and after such Redemption Date and the only
right of the Holders of such Notes will be to receive payment of the Redemption
Price plus interest accrued through the Redemption Date, if any.
7. Offers to Purchase. Prior to the occurrence of the Fall-Away Event
(as defined in the Indenture), the Indenture provides that, after certain Asset
Sales (as defined in the Indenture) or upon the occurrence of a Change of
Control (as defined in the Indenture), and subject to further limitations
contained therein, the Company will make an offer to purchase certain amounts
of the Notes in accordance with the procedures set forth in the Indenture.
7A. Holders' Right to Require Purchase. Each Holder of the Notes shall
have the right to require the Company to purchase all outstanding Notes held by
such Holder on January 2, 2009, for a purchase price equal to 100% of the
principal amount of such Notes, plus accrued interest thereon to the date of
purchase (the "Purchase Price").
A Holder electing to require the Company to purchase its Notes must
provide written notice of its irrevocable election to exercise its put option
pursuant to this Section 7A not more than 150 days and no fewer than 120 days
prior to January 2, 2009, and the Company shall purchase the Notes from all
Holders who have delivered such notice on January 2, 2009. A Holder electing to
require the Company to purchase its Notes in accordance with the previous
sentence may not thereafter revoke such notice and shall be required to
surrender the Notes in accordance with this Section 7A.
Holders electing to have their Notes purchased by the Company shall be
required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Note completed, to the Paying Agent prior
to the close of business on January 2, 2009.
On January 2, 2009, the Company shall accept such Notes for
payment and deposit with the Paying Agent U.S. legal tender sufficient to pay
the Purchase Price of the Notes to be purchased on January 2, 2009, the Paying
Agent shall mail to each Holder of Notes being purchased payment in an amount
equal to the Purchase Price for such Notes.
8. Registration Rights. Pursuant to the Registration Rights Agreement
by and between the Company and the Initial Purchasers, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Note shall have the right to exchange this Note for the Company's Series B
7-5/8% Senior Notes due 2012 (the "Exchange Notes"), at such time as the
Exchange Notes shall have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects to the
Initial Notes (except that such Exchange Notes will not contain terms with
respect to transfer restrictions or additional interest). The Holders of the
Initial Notes shall be entitled to receive certain Additional Interest payments
in the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
9. Denominations; Transfer; Exchange. The Notes are in definitive,
fully registered form, without coupons, in minimum denominations of $1,000 and
in integral multiples of $1,000 in excess thereof. A Holder shall register the
transfer or exchange of Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of such Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years (or such shorter period for the return of such
moneys to the Company under applicable abandoned property laws), the Trustee
and the Paying Agent will pay the money back to the Company. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an "abandoned property" law designates another person.
12. Legal Defeasance and Covenant Defeasance. If the Company at any
time deposits with the Trustee U.S. legal tender or other obligations of the
types set forth in the Indenture sufficient to pay the principal of and
interest on the Notes to Stated Maturity or redemption, if applicable, and
complies with the other provisions of the Indenture relating to Legal
Defeasance or Covenant Defeasance, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
13. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate outstanding
principal amounts of the Notes, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, make
payments in respect of its Capital Stock, incur additional Indebtedness, make
certain investments, sell assets, enter into transactions with Affiliates,
create Liens, merge or consolidate with or into any other Person or sell,
lease, convey or otherwise dispose of all or substantially all of its assets or
create dividend or other payment restrictions affecting Subsidiaries of the
Company. Such limitations are subject to a number of important qualifications
and exceptions and, in certain instances upon the occurrence of certain events,
cease to be binding upon the Company and its Subsidiaries. The Company must
report on an annual basis to the Trustee on compliance with such limitations.
15. Successor. When a Successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor entity will be released from
those obligations.
16. Defaults and Remedies. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default with respect
to the Company pursuant to SECTION 6.01(F) or 6.01(G) of the Indenture) shall
have occurred and be continuing, then the Trustee by written notice to the
Company, or the Holders of not less than 25% in aggregate principal amount of
the Notes then outstanding by written notice to the Company and the Trustee,
may declare to be immediately due and payable the entire principal amount of
all the Notes then outstanding plus accrued interest to the date of
acceleration; provided, however, that after such acceleration but before a
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes by
written notice to the Company and the Trustee may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration, have been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto. In case an Event of Default with respect to the Company specified in
Section 6.01(f) or 6.01(g) of the Indenture occurs, the principal amount,
together with premium, if any, and interest with respect to all of the Notes,
shall be due and payable immediately without any declaration or other act on
the part of the Trustee or the Holders of the Notes.
17. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company, and may otherwise deal with the Company,
its Subsidiaries or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No incorporator, director, officer,
employee, stockholder or controlling person, as such, of the Company shall have
any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
19. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Multiple Counterparts. The parties may sign multiple counterparts
of this Note. Each signed counterpart shall be deemed an original but all of
them together represent one and the same Note.
21. Governing Law. This note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York, without regard to principles of
conflicts of law. Each of the parties to the indenture has agreed to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this note.
22. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. The Company has caused CUSIP numbers to be printed
on the Notes as a convenience to the Holders. No representation is made as to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to:
HEALTHSOUTH Corporation, Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Telephone No. (000) 000-0000, Facsimile No. (000) 000-0000, Attention: General
Counsel.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ___________________________ agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
Date: ______________________ Signed: ___________________________
NOTICE: The signature on this assignment must correspond with the name as it
appears upon the face of the within Note in every particular without alteration
or enlargement or any change whatsoever and be guaranteed by the endorser's
bank or broker.
Medallion Guarantee: _____________________________
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.12 or SECTION 4.15 of the Indenture or Section 7A of the
Note, check the appropriate box:
Section 4.12 [ ]
Section 4.15 [ ]
Section 7A [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.12 or SECTION 4.15 of the Indenture or Section 7A
of the Note, state the amount you elect to have purchased:
$ _______________________
Date:________________________
__________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
EXHIBIT B
---------
[FORM OF AMENDED AND RESTATED SERIES B NOTE]
CUSIP No.:
HEALTHSOUTH CORPORATION
__% AMENDED AND RESTATED SENIOR NOTE DUE 20__
No. $
HEALTHSOUTH CORPORATION, a corporation incorporated in Delaware (the
"Company," which term includes any successor entity), for value received
promises to pay to CEDE & CO., or registered assigns, the principal sum of $ on
June 1, 20__.
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2002.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Amended and
Restated Note contained herein and the Indenture (as defined), which will for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Note to be signed manually or by facsimile by its duly authorized directors,
officers or other authorized signatories.
HEALTHSOUTH CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Date:______________________
This is one of the __% Amended and Restated Senior Notes due 20__
referred to in the within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST COMPANY OF
NEW YORK, AS TRUSTEE
By: __________________________________
Authorized Signatory:
(REVERSE OF SECURITY)
__% AMENDED AND RESTATED SENIOR NOTE DUE 20__
1. Interest. HEALTHSOUTH CORPORATION, a corporation incorporated in
Delaware (the "Company"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above. Interest on the Notes will accrue
from the most recent date on which interest has been paid or duly provided for,
or if no interest has been paid, from the date of the original issuance of the
Notes. The Company will pay interest semi-annually in arrears on each Interest
Payment Date, commencing December 1, 2002. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to
the extent lawful from time to time on demand at the rate borne by the Notes.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at
the close of business on May 15 or November 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are canceled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Payments of principal and premium, if any, will be
made (on presentation of such Notes if in certificated form) in U.S. legal
tender; provided, however, that the Company may pay principal, premium, if any,
and interest by check payable in U.S. legal tender. The Company may deliver any
such interest payment by check mailed to the address of the Person entitled
thereto as such address will appear on the security register.
3. Paying Agents and Registrar. Initially, The Bank of Nova Scotia
Trust Company of New York (the "Trustee"), will act as Paying Agent and the
Trustee will act as Registrar. The Company may change any Paying Agents,
Registrar or co-Registrar without notice to the Holders. Neither the Company
nor any of its Subsidiaries or Affiliates may act as Paying Agent but may act
as Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture, dated
as of May 22, 2002 (as amended, restated or otherwise modified, the
"Indenture"), by and between the Company and the Trustee. This Note is one of a
duly authorized issue of Exchange Notes of the Company designated as its __%
Senior Notes due 20__ (the "Notes"), as amended and restated pursuant to the
First Supplemental Indenture, dated June 24, 2004, to the Indenture. The Notes
include the Initial Notes and the Exchange Notes issued pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for
a statement of them. The Notes are general unsecured obligations of the
Company.
5. Redemption. The Notes will be redeemable, in whole or in part, at
the option of the Company at any time at a redemption price equal to 100% of
the principal amount of the Notes to be redeemed plus any applicable Make-Whole
Premium (together, the "Redemption Price") plus accrued interest thereon to the
date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of the principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.50%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Make-Whole Premium" means, for any Note to be redeemed, a premium
equal to the excess (if any) of (i) as determined by a Quotation Agent, the sum
of the present values of the remaining scheduled payments of principal and
interest on such Note discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate over (ii) 100% of the unpaid principal amount of such Note. If a
redemption date does not fall on an interest payment date, then, with respect
to the interest payment immediately succeeding the redemption date, only the
unaccrued portion of such interest payment as of the redemption date shall be
included in the calculation pursuant to clause (i) above.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means (i) each of UBS Warburg LLC,
Deutsche Bank Securities Inc. and Banc of America Securities LLC and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by such Reference Treasury Dealer, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing by such Reference Treasury Dealer at 5:00
p.m. on the third business day preceding such redemption date.
If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among
the outstanding Notes on a pro rata basis, by lot or by any other method
permitted in the Indenture. On and after the redemption date, interest will
cease to accrue on the Notes or portions thereof called for redemption.
The Notes will not be entitled to any sinking fund.
6. Notice of Redemption. Notice of redemption under paragraph 5 of
this Note will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then the Notes called for redemption
will cease to bear interest from and after such Redemption Date and the only
right of the Holders of such Notes will be to receive payment of the Redemption
Price plus interest accrued through the Redemption Date, if any.
7. Offers to Purchase. Prior to the occurrence of the Fall-Away Event
(as defined in the Indenture), the Indenture provides that, after certain Asset
Sales (as defined in the Indenture) or upon the occurrence of a Change of
Control (as defined in the Indenture), and subject to further limitations
contained therein, the Company will make an offer to purchase certain amounts
of the Notes in accordance with the procedures set forth in the Indenture.
7A. Holders' Right to Require Purchase. Each Holder of the Notes shall
have the right to require the Company to purchase all outstanding Notes held by
such Holder on January 2, 2009, for a purchase price equal to 100% of the
principal amount of such Notes, plus accrued interest thereon to the date of
purchase (the "Purchase Price").
A Holder electing to require the Company to purchase its Notes must
provide written notice of its irrevocable election to exercise its put option
pursuant to this Section 7A not more than 150 days and no fewer than 120 days
prior to January 2, 2009, and the Company shall purchase the Notes from all
Holders who have delivered such notice on January 2, 2009. A Holder electing to
require the Company to purchase its Notes in accordance with the previous
sentence may not thereafter revoke such notice and shall be required to
surrender the Notes in accordance with this Section 7A.
Holders electing to have their Notes purchased by the Company shall be
required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Note completed, to the Paying Agent prior
to the close of business on January 2, 2009.
On January 2, 2009, the Company shall accept such Notes for payment
and deposit with the Paying Agent U.S. legal tender sufficient to pay the
Purchase Price of the Notes to be purchased on January 2, 2009, the Paying
Agent shall mail to each Holder of Notes being purchased payment in an amount
equal to the Purchase Price for such Notes.
8. Denominations; Transfer; Exchange. The Notes are in definitive,
fully registered form, without coupons, in minimum denominations of $1,000 and
in integral multiples of $1,000 in excess thereof. A Holder shall register the
transfer or exchange of Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption.
9. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of such Note for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years (or such shorter period for the return of such
moneys to the Company under applicable abandoned property laws), the Trustee
and the Paying Agent will pay the money back to the Company. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an "abandoned property" law designates another person.
11. Legal Defeasance and Covenant Defeasance. If the Company at any
time deposits with the Trustee U.S. legal tender or other obligations of the
types set forth in the Indenture sufficient to pay the principal of and
interest on the Notes to Stated Maturity or redemption, if applicable, and
complies with the other provisions of the Indenture relating to Legal
Defeasance or Covenant Defeasance, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
12. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate outstanding
principal amounts of the Notes, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
13. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, make
payments in respect of its Capital Stock, incur additional Indebtedness, make
certain investments, sell assets, enter into transactions with Affiliates,
create Liens, merge or consolidate with or into any other Person or sell,
lease, convey or otherwise dispose of all or substantially all of its assets or
create dividend or other payment restrictions affecting Subsidiaries of the
Company. Such limitations are subject to a number of important qualifications
and exceptions and, in certain instances upon the occurrence of certain events,
cease to be binding upon the Company and its Subsidiaries. The Company must
report on an annual basis to the Trustee on compliance with such limitations.
14. Successor. When a Successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor entity will be released from
those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default with respect
to the Company pursuant to SECTION 6.01(F) or 6.01(G) of the Indenture) shall
have occurred and be continuing, then the Trustee by written notice to the
Company, or the Holders of not less than 25% in aggregate principal amount of
the Notes then outstanding by written notice to the Company and the Trustee,
may declare to be immediately due and payable the entire principal amount of
all the Notes then outstanding plus accrued interest to the date of
acceleration; provided, however, that after such acceleration but before a
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes by
written notice to the Company and the Trustee may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration, have been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto. In case an Event of Default with respect to the Company specified in
Section 6.01(f) or 6.01(g) of the Indenture occurs, the principal amount,
together with premium, if any, and interest with respect to all of the Notes,
shall be due and payable immediately without any declaration or other act on
the part of the Trustee or the Holders of the Notes.
16. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company, and may otherwise deal with the Company,
its Subsidiaries or their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others. No incorporator, director, officer,
employee, stockholder or controlling person, as such, of the Company shall have
any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
18. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
19. Multiple Counterparts. The parties may sign multiple counterparts
of this Note. Each signed counterpart shall be deemed an original but all of
them together represent one and the same Note.
20. Governing Law. This note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York, without regard to principles of
conflicts of law. Each of the parties to the indenture has agreed to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this note.
21. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP Numbers. The Company has caused CUSIP numbers to be printed
on the Notes as a convenience to the Holders. No representation is made as to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to:
HEALTHSOUTH Corporation, Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Telephone No. (000) 000-0000, Facsimile No. (000) 000-0000, Attention: General
Counsel.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________
________________________________________________________
________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________ agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Date: ________________________ Signed:_________________________________
(sign exactly as your name appears
on the other side of this Note)
NOTICE: The signature on this assignment must correspond with the name as it
appears upon the face of the within Note in every particular without alteration
or enlargement or any change whatsoever and be guaranteed by the endorser's
bank or broker.
Medallion Guarantee: ___________________________
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.12 or SECTION 4.15 of the Indenture or Section 7A of the
Note, check the appropriate box:
Section 4.12 [ ]
Section 4.15 [ ]
Section 7A [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.12 or SECTION 4.15 of the Indenture or Section 7A
of the Note, state the amount you elect to have purchased:
$______________________
Date:______________________________
__________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
