Contract
EXHIBIT 4.4.2
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of April 9, 2003 (this “Instrument”), among HEALTHSOUTH CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware, having its principal office at Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (the “Company”), NATIONAL CITY BANK, a national banking association duly organized and existing under the laws of the United States, having its corporate trust office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as resigning Trustee (the “Resigning Trustee”), and WILMINGTON TRUST COMPANY, a corporation duly organized and existing under the laws of the State of Delaware, having its corporate trust office at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as successor Trustee (the “Successor Trustee”).
RECITALS
There are presently outstanding under an Indenture, dated as of September 28, 2001 (the “Indenture”), between the Company and the Resigning Trustee, (i) $180,300,000 in aggregate principal amount of the Company’s 7 3/8% Senior Notes due 2006 (the “2006 Notes”), and (ii) $347,700,000 in aggregate principal amount of the Company’s 8 3/8% Senior Notes due 2011 (the “2011 Notes” and, together with the 2006 Notes, the “Securities”).
The Resigning Trustee wishes to resign as Trustee, Registrar, Paying Agent and the office where notices and demands to or upon the Company in respect of the Securities appertaining thereto or the Indenture (the “Agent”) may be served under the Indenture; the Company wishes to appoint the Successor Trustee to succeed the Resigning Trustee as Trustee, Registrar, Paying Agent and Agent under the Indenture; and the Successor Trustee wishes to accept appointment as Trustee, Registrar, Paying Agent and Agent under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein, the receipt and sufficiency of which are hereby acknowledged, the Company, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 7.08 of the Indenture, the Resigning Trustee hereby notifies the Company that the Resigning Trustee is hereby resigning as Trustee under the Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to the Successor Trustee and the Company that:
(a) No covenant or condition contained in the Indenture has been waived by the Resigning Trustee.
(b) There is no action, suit or proceeding pending or, to the best of the knowledge of the Trust Officers of the Resigning Trustee, threatened against the Resigning Trustee before any court or governmental authority arising out of any action or omission by the Resigning Trustee as Trustee under the Indenture.
(c) This Instrument has been duly authorized, executed and delivered on behalf of the Resigning Trustee and constitutes its legal, valid and binding obligation.
(d) (i) $180,300,000 in aggregate principal amount of the 2006 Notes is outstanding as of the effective date hereof and interest has been paid through October 1, 2002, and (ii) $347,700,000 in aggregate principal amount of the 2011 Notes is outstanding as of the effective date hereof and interest has been paid through October 1, 2002.
(e) The Resigning Trustee has notified the Holders of the Securities, as set forth in Exhibit E, of such Defaults and Events of Default as required under the terms of the Indenture. Except as set forth in Exhibit E, to the best of the knowledge of the Trust Officers of the Resigning Trustee, no event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under the Indenture.
(f) The Resigning Trustee has made, or promptly will make, available to the Successor Trustee originals, if available, or copies in its possession, of all documents relating to the trusts created by the Indenture (the “Trust”) and all information in the possession of its corporate trust department relating to the administration and status of the Trust.
Section 103. The Resigning Trustee hereby assigns, transfers, delivers and confirms to the Successor Trustee all right, title and interest of the Resigning Trustee in and to the Trust, all rights, powers, duties and obligations of the Trustee under the Indenture and all property and moneys held by such Resigning Trustee under the Indenture, The Resigning Trustee shall execute and deliver such further instruments and shall do such other things as each of the Company and the Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in the Successor Trustee all such rights, powers, duties and obligations hereby assigned, transferred, delivered and confirmed to the Successor Trustee.
Section 104. The Resigning Trustee hereby resigns as Registrar, Paying Agent and Agent under the Indenture.
Section 105. The Resigning Trustee agrees to pay or indemnify the Successor Trustee and save the Successor Trustee harmless from and against any and all costs, claims, liabilities, losses or damages whatsoever (including the reasonable fees, expenses and disbursements of the Successor Trustee’s counsel and other advisors), that the Successor Trustee suffers or incurs without gross negligence or bad faith on its part arising out of actions or omissions of the Resigning Trustee. The Successor Trustee will furnish to the Resigning Trustee, promptly after receipt, all papers with respect to any action the outcome of which would make operative the indemnity provided for in this Section. The Successor Trustee shall notify the Resigning Trustee promptly in writing (and, in any event, within no later than 10 days) of any claim for which it may seek indemnity. The Resigning Trustee shall have the option to defend the claim and the Successor Trustee shall cooperate fully in the defense. If the Resigning Trustee shall assume the defense, then the Resigning Trustee shall not pay for separate counsel
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of the Successor Trustee. The Resigning Trustee shall not be obligated to pay for any settlement made without its consent.
ARTICLE TWO
THE COMPANY
Section 201. The Company hereby certifies that Exhibit A annexed hereto is a copy of the resolutions which were duly adopted by the Board of Directors of the Company, which are in full force and effect on the date hereof, and which authorize certain officers of the Company to: (a) accept the Resigning Trustee’s resignation as Trustee, Registrar, Paying Agent and Agent under the Indenture; (b) appoint the Successor Trustee as Trustee, Registrar, Paying Agent and Agent under the Indenture; and (c) execute and deliver such agreements and other instruments as may be necessary or desirable to effectuate the succession of the Successor Trustee as Trustee, Registrar, Paying Agent and Agent under the Indenture.
Section 202. Pursuant to Section 7.08 of the Indenture, the Company hereby appoints the Successor Trustee as Trustee under the Indenture and confirms to the Successor Trustee all rights, powers, duties and obligations of the Trustee under the Indenture and with respect to all property and moneys held or to be held under the Indenture. The Company shall execute and deliver such further instruments and shall do such other things as the Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in the Successor Trustee all such rights, powers, duties and obligations hereby assigned, transferred, delivered and confirmed to the Successor Trustee.
Section 203. The Company hereby represents and warrants to the Successor Trustee and the Resigning Trustee that:
(a) The Company is a corporation duly and validly organized and existing pursuant to the laws of the State of Delaware.
(b) The Indenture was validly and lawfully executed and delivered by the Company, has not been amended or modified and is in full force and effect.
(c) The Securities are validly issued securities of the Company.
(d) No covenant or condition contained in the Indenture has been waived by the Company or by the Holders of the percentage in aggregate principal amount of the Securities required by the Indenture to effect any such waiver.
(e) The Company is in the process of determining whether any event, in addition to those set forth on Exhibit E, has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under the Indenture, and the Company has not given notice under the Indenture of any such event, other than with respect to the events set forth on Exhibit E.
(f) There is no action, suit or proceeding pending or, to the best of the Company’s knowledge, threatened against the Company before any court or any
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governmental authority arising out of any action or omission by the Company under the Indenture.
(g) This Instrument has been duly authorized, executed and delivered on behalf of the Company and constitutes its legal, valid and binding obligation.
(h) All conditions precedent relating to the appointment of Wilmington Trust Company as Successor Trustee, Registrar, Paying Agent and Agent for all Securities under the Indenture have been complied with by the Company.
Section 204. The Company hereby appoints the Successor Trustee as Registrar, Paying Agent and Agent under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to the Resigning Trustee and the Company that:
(a) The Successor Trustee is qualified and eligible under the provisions of Section 7.10 of the Indenture to act as Trustee under the Indenture.
(b) This Instrument has been duly authorized, executed and delivered on behalf of the Successor Trustee and constitutes its legal, valid and binding obligation.
Section 302. Pursuant to Section 7.08 of the Indenture, the Successor Trustee hereby accepts its appointment as Trustee under the Indenture and shall hereby be vested with all rights, powers, duties and obligations of the Trustee under the Indenture and with respect to all property and moneys held or to be held under the Indenture.
Section 303. The Successor Trustee hereby accepts its appointment as Registrar, Paying Agent and Agent under the Indenture.
Section 304. Promptly after the execution and delivery of this Instrument, the Successor Trustee, on behalf of the Company, shall cause a notice, which shall include the language contained in the notice annexed hereto marked Exhibit B, to be sent to each Holder of the Securities in accordance with Section 7.08 of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless the context otherwise requires, all capitalized terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 402. This Instrument and the resignation, appointment and acceptance effected hereby shall be effective as of the close of business on the date first above written;
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provided, however, that the resignation of the Resigning Trustee and the appointment of the Successor Trustee as Registrar, Paying Agent and Agent under the Indenture shall be effective 10 business days after the date first above written.
Section 403. Notwithstanding the resignation of the Resigning Trustee effected hereby, the Company shall remain obligated under Section 7.07 of the Indenture to compensate, reimburse and indemnify the Resigning Trustee in connection with its prior trusteeship under the Indenture. The Company also acknowledges and reaffirms its obligations to the Successor Trustee as set forth in Section 7.07 of the Indenture, including payments to be made in accordance with the fee schedules attached hereto as Exhibits C and D, which obligations shall survive the execution hereof.
Section 404. This Instrument shall be governed by and construed in accordance with the laws of the jurisdiction which govern the Indenture and its construction.
Section 405. This Instrument may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 406. All notices, whether faxed or mailed, will be deemed received when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
Xxxxxxxxx X. Xxxxxxx
Vice President
National City Bank
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE COMPANY:
Xxxxxxx X. Xxxxx
Group Vice President
HEALTHSOUTH Corporation
Xxx XxxxxxXxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument of Resignation, Appointment and Acceptance to be duly executed as of the day and year first above written.
| HEALTHSOUTH CORPORATION | ||||
| By: |
/s/ Xxxxxxx X. Xxxxx | |||
| Name: |
Xxxxxxx X. Xxxxx | |||
| Title: |
Group Vice President | |||
| NATIONAL CITY BANK, as Resigning Trustee | ||||
| By: |
/s/ Xxxxxxxxx X. Xxxxxxx | |||
| Name: |
Xxxxxxxxx X. Xxxxxxx | |||
| Title: |
Vice President | |||
| WILMINGTON TRUST COMPANY, as Successor Trustee | ||||
| By: |
/s/ Xxxxxx Xxxxxxxx | |||
| Name: |
Xxxxxx Xxxxxxxx | |||
| Title: |
Vice President | |||
