Exhibit 4.4
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of February 15, 2006, between HealthSouth Corporation, a Delaware
corporation (the "Company"), and HSBC Bank USA, National Association, as
successor trustee to The Bank 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, dated as of September 25, 2000, as supplemented by
the Amendment to Indenture, dated as of August 27, 2003 and the Second
Supplemental Indenture, dated as of May 14, 2004 (as so amended and
supplemented, the "Indenture"), providing for the issuance of an aggregate
principal amount of $350 million of 10-3/4% Senior Subordinated Notes due 2008,
of which $319,260,000 remain outstanding at the date hereof (the "Notes");
WHEREAS, 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 (and
not thereafter validly revoked such consent) as provided therein ("Requisite
Consent");
WHEREAS, the Company has distributed Offers to Purchase and
Consent Solicitations Statement, dated February 2, 2006, as supplemented (the
"Solicitation Statement"), and accompanying Consent and Letter of Transmittal,
dated as of February 2, 2006, 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 has been provided satisfactory evidence of such Requisite Consent and
the Company hereby certifies that 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 has 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. AMENDMENTS TO THE DEFINITIONS IN THIS INDENTURE AND THE NOTES. Any
definitions used exclusively in the provisions of the Indenture or the Notes
that are deleted as described in the Solicitation Statement, and any
definitions used exclusively within such definitions, are hereby deleted in
their entirety from the Indenture and the Notes, and all references in the
Indenture and the Notes to paragraphs, Sections, Articles or other terms or
provisions of the Indenture that have been otherwise deleted pursuant to this
Supplemental Indenture are hereby deleted in their entirety or revised to
conform herewith.
3. AMENDMENTS TO ARTICLE 4 - COVENANTS. The following Sections of the
Indenture, and any corresponding provisions in the Notes, are hereby deleted in
their entirety and replaced with "Intentionally Omitted.":
Existing Section Number Caption
----------------------- -------
Section 4.02............................... REPORTS
Section 4.04............................... COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT; TAX
INFORMATION
Section 4.05............................... PAYMENT OF TAXES AND OTHER CLAIMS
Section 4.06............................... CORPORATE EXISTENCE
Section 4.09............................... MAINTENANCE OF PROPERTIES AND INSURANCE
Section 4.10............................... LIMITATION ON RESTRICTED PAYMENTS
Section 4.11............................... LIMITATION ON ADDITIONAL INDEBTEDNESS AND
SUBSIDIARY PREFERRED STOCK
Section 4.13............................... LIMITATION ON TRANSACTIONS WITH AFFILIATES
Section 4.14............................... LIMITATION ON LIENS
Section 4.16............................... LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
SUBSIDIARIES
Section 4.17............................... LIMITATIONS ON CERTAIN OTHER SUBORDINATED
INDEBTEDNESS
4. AMENDMENTS TO ARTICLE 5 - SURVIVING ENTITY. Section 5.01 of the
Indenture is hereby amended by deleting clauses (ii), (iii) and (iv) thereof.
5. AMENDMENTS TO ARTICLE 6 - EVENTS OF DEFAULT. Section 6.01 of the
Indenture is hereby amended by deleting paragraphs (d), (e) and, (f) thereof.
6. 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.
7. 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.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
9. 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. All of the provisions contained in the Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of the Supplemental Indenture as fully and with like
force and effect as though fully set forth in full herein.
10. 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) Requisite Consent of
the Holders to the Proposed Amendments has been given to such provision on or
prior to the date hereof. Notwithstanding an earlier execution date, the
provisions of this Supplemental Indenture shall become operative at the time
and date upon which the Company notifies the depositary and information agent
for the Notes, Global Bondholder Services Corp., that the Notes are accepted
for purchase pursuant to the Solicitation Statement. The Company shall promptly
notify the Trustee that it has accepted for purchase the Notes, however failure
to notify the Trustee shall not affect whether or not this Supplemental
Indenture is operative.
11. 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.
12. 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 Third
Supplemental Indenture to be duly executed and attested, all as of the date
first written above.
HEALTHSOUTH CORPORATION
By: /s/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel and
Secretary
HSBC BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ HERAWATTEE ALLI
-----------------------------
Name: Herawattee Alli
Title: Assistant Vice President
