Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
(as to 7.000% Senior Notes due 2008)
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of February 15, 2006, between HealthSouth Corporation, a Delaware
corporation (the "Company"), and Wilmington Trust Company, as successor trustee
to PNC Bank, National Association, 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 June 22, 1998, as supplemented by the First
Supplemental Indenture relating solely to the 2008 Notes (as defined below),
dated as of June 24, 2004 (as so supplemented, the "Indenture") providing for
the issuance of an aggregate principal amount of $250.0 million of 6.875%
Senior Notes due 2005 (the "2005 Notes") and an aggregate principal amount of
$250.0 million of 7.000% Senior Notes due 2008 (the "2008 Notes," and together
with the 2005 Notes, the "Notes");
WHEREAS, pursuant to Sections 2.3 and 11.5 of the Indenture, the
Company delivered an Officers' Certificate, dated as of June 22, 1998, which
contains certain additional covenants that are included in the Notes (the
"Certificate");
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 8.2 of the Indenture provides that the Company and
the Trustee may amend the Indenture with the written consent of the Holders of
not less than a majority in aggregate principal amount of the Notes at the time
Outstanding of all series affected thereby ("Requisite Consent");
WHEREAS, on June 15, 2005, the Company repaid the 2005 Notes, and as
such this Supplemental Indenture and the Proposed Amendments contemplated
herein shall only apply to the 2008 Notes;
WHEREAS, the Company has distributed Offers to Purchase and Consent
Solicitations Statements, dated February 2, 2006, as supplemented (the
"Solicitation Statement"), and related Consent and Letter of Transmittal, dated
as of February 2, 2006, to the Holders of the 2008 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 2008 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 THE INDENTURE AND THE 2008 NOTES.
Any definitions used exclusively in the provisions of the Indenture or the 2008
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 2008 Notes, and all references in the
Indenture and the 2008 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 3 - COVENANTS OF THE COMPANY. The following
Sections of the Indenture, and any corresponding provisions in the 2008 Notes,
are hereby deleted in their entirety and replaced with "Intentionally
Omitted.":
Existing Section Number Caption
----------------------- -------
Section 3.5............................... COMPLIANCE CERTIFICATES
Section 3.6............................... CORPORATE EXISTENCE
Section 3.7............................... MAINTENANCE OF PROPERTIES
Section 3.8............................... PAYMENT OF TAXES AND OTHER CLAIMS
Section 3.10.............................. LIMITATION ON LIENS
Section 3.11.............................. LIMITATIONS ON SALE AND
LEASE-BACK TRANSACTIONS
4. AMENDMENTS TO ARTICLE 4 - SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY TO THE TRUSTEE. Article 4 of the Indenture is hereby amended by
deleting Section 4.4 thereof and replacing it with "Intentionally Omitted."
5. AMENDMENTS TO ARTICLE 5 - REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT. Section 5.1 of the Indenture is hereby
amended by deleting paragraphs (d) and (e) thereof.
6. AMENDMENT TO ARTICLE 9 - CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Section 9.1 of the Indenture is hereby amended by deleting paragraph (b)
thereof.
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
solely with respect to the 2008 Notes for all purposes, and every holder of a
2008 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 2008 Notes
have provided consents (and not thereafter validly revoked such consent) 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.
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 2008 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 Second
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
WILMINGTON TRUST COMPANY, AS
TRUSTEE
By: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
