EXHIBIT (99)-6
EXCHANGE AGENT AGREEMENT
August ___, 1998
PNC Bank, N.A.
Corporate Trust Department
500 West Jefferson Street
Louisville, Kentucky 40202
Attention: David Metcalf
Ladies and Gentlemen:
HEALTHSOUTH Corporation (the "Company"), is offering to exchange (the
"Exchange Offer") its 6.875% Senior Notes due 2005 (the "New Notes due 2005")
and 7.0% Senior Notes due 2008 (the "New Notes due 2008" and, together with the
New Notes due 2005, the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-4 (File No. 333-____) for an equal principal
amount of the Company's outstanding 6.875% Senior Notes due 2005 (the "Old Notes
due 2005") and 7.0% Senior Notes due 2008 (the "Old Notes due 2008" and,
together with the Old Notes due 2005, the "Old Notes"), which were issued in a
transaction exempt from registration under the Securities Act. The New Notes and
the Old Notes are collectively referred to herein as the "Notes". The Term
"Expiration Date" shall mean 5:00 p.m., New York City time, on __________, 1998,
unless the Exchange Offer is extended as provided in the Prospectus included in
such Registration Statement (the "Prospectus"), in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, PNC Bank, N.A. will act as
the Exchange Agent for the Exchange Offer (the "Exchange Agent"). A copy of the
Prospectus is attached hereto as EXHIBIT A. Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter of
clients (collectively, the "Tender Documents") to be used by holders of Old
Notes ("Holders") in order to receive New Notes pursuant to the Exchange Offer
is attached hereto as EXHIBIT B.
The Company hereby appoints you to act as Exchange Agent in connection with
the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of the
Holders and participants on the day that you are notified by the Company that
the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof to any persons who become Holders prior to the Expiration Date
and to any persons as may from time to time be requested by the Company. All
mailings pursuant to this Section 1 shall be by first-class mail, postage
prepaid, unless otherwise specified by the Company. You shall also accept and
comply with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for tendering
Old Notes in (or withdrawing tenders of Old Notes from) the Exchange Offer. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Leif Murphy, One HealthSouth Parkway, Birmingham,
Alabama 35243; Telephone (205) 969-6056; Facsimile (205) 969-6837.
2. You are to examine the Letters of Transmittal and the Old Notes and
other documents delivered or mailed to you, by or for the Holders, prior to the
Expiration Date, to ascertain whether (i) each Letter of Transmittal is properly
executed and completed in accordance with the instructions set forth therein,
(ii) the Old Notes are in proper form for transfer and (iii) any other document
required by the instructions accompanying the Letters of Transmittal is
completed and duly executed in accordance with such instructions. In each case
where a Letter of Transmittal or other document has been improperly executed or
completed or, for any other reason, is not in proper form, or some other
irregularity exists, you are authorized to endeavor to take such action as you
consider appropriate to notify the tendering Holder of such irregularity and as
to the appropriate means of resolving the same. Determination of questions as to
the proper completion or execution of the Letters of Transmittal, or as to the
proper form for transfer of the Old Notes or as to any other irregularity in
connection with the submission of Letters of Transmittal and/or Old Notes and
other documents in connection with the Exchange Offer, shall be made by the
officers of, or counsel for, the Company at their written instructions or oral
direction confirmed by facsimile. Any determination made by the Company on such
questions shall be final and binding.
3. At the written request of the Company or its counsel, Haskell Slaughter
& Young, L.L.C., you shall notify tendering Holders in the event of any
extension, termination or amendment of the Exchange Offer. In the event of any
such termination, you will return all tendered Old Notes to the persons entitled
thereto, at the request and expense of the Company.
4. Tender of the Old Notes may be made only as set forth in the Letter of
Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly tendered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and
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shall be preserved and retained by you at the Company's expense for six years.
New Notes are to be issued in exchange for Old Notes pursuant to the Exchange
Offer only in accordance with the provisions of Section 8 hereof and only (i)
against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in the
Letter of Transmittal, within three New York Stock Exchange trading days after
the Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and other documents required by the Exchange Offer or (ii) in the
event that the Holder is a participant in The Depository Trust Company ("DTC")
system, by the utilization of DTC's Automated Tender Offer Program ("ATOP") and
any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the Old
Notes at DTC (the "Book Entry Transfer Facility") within two business days after
the date of the Prospectus. Any financial institution that is a participant in
the Book Entry Transfer Facility system may, until the Expiration Date, make
book-entry delivery of the Shares by causing the Book Entry Transfer Facility to
transfer such Notes into your account in accordance with the procedure for such
transfer established by the Book Entry Transfer Facility. In every case,
however, a Letter of Transmittal (or a manually executed facsimile thereof), or
an Agent's Message, properly completed and duly executed with any required
signature guarantees and any other required documents must be transmitted to and
received by you prior to the Expiration Date or the guaranteed delivery
procedures described in the Prospectus must be complied with.
The term "Agent's Message" means a message transmitted by a participant of
the Book Entry Transfer Facility to and received by DTC and forming a part of a
Book Entry Confirmation, which states that such Book Entry Transfer Facility has
received an express acknowledgment from the participant in such Book Entry
Transfer Facility tendering the Old Notes that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Company may enforce such agreement against such participant.
5. Upon the oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to Leif Murphy, One
HealthSouth Parkway, Birmingham, Alabama 35243; Telephone (205) 969-6056;
Facsimile (205) 969-6837, or such other persons as the Company may reasonably
request the aggregate number and principal amount of Old Notes tendered to you
and the number and principal amount of Old Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonably request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Old Notes in accordance with Section 8 hereof. You will hold all items
which are deposited for tender with you after 5:00 p.m., New York City time, on
the Expiration Date pending further instructions from an officer of the Company
or its counsel.
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7. If any Holder shall report to you that his or her failure to surrender
Old Notes registered in his or her name is due to the loss or destruction of a
certificate or certificates, you shall request such Holder (i) to furnish to you
an affidavit of loss and, if required by the Company, a bond of indemnity in an
amount and evidenced by such certificate or certificates of a surety, as may be
satisfactory to you and the Company, and (ii) to execute and deliver an
agreement to indemnify the Company and you in such form as is acceptable to you
and the Company. The obligees to be named in each such indemnity bond shall
include the Company and you. You shall report to the Company the names of all
Holders who claim that their Old Notes have been lost or destroyed and the
principal amount of such Old Notes.
8. Upon the expiration of the Exchange Offer, Michael D. Martin, William W.
Horton or Leif Murphy, or another designated officer or agent of the Company,
will confirm to you orally (oral notice to be promptly confirmed in writing) or
in writing the aggregate principal amount of Old Notes being exchanged for New
Notes pursuant to the Exchange Offer. The Old Notes accepted for exchange are to
be delivered to the Trustee with instructions to cancel such Old Notes and
unless otherwise instructed by the Company to destroy such canceled Old Notes
and furnish the Company with a certificate evidencing such destruction.
As soon as practicable after the Company notifies you of its election to
exchange Old Notes pursuant to the preceding paragraph, you shall either (i)
cause an aggregate principal amount of New Notes equal to the aggregate
principal amount of Old Notes surrendered with and tendered by each Letter of
Transmittal or Agent's Message and accepted for exchange to be reflected, as
directed in such Letter of Transmittal or Agent's Message, on records maintained
by DTC, or, as applicable, (ii) at the request of the tendering Holder contained
in a Letter of Transmittal which is tendering Old Notes in definitive form,
cause to be delivered as directed in such Letter of Transmittal New Notes
registered in the name or names specified in such Letter of Transmittal
evidencing an aggregate principal amount equal to the aggregate principal amount
of Old Notes surrendered with and tendered by such Letter of Transmittal.
Tenders pursuant to the Exchange Offer are irrevocable, except that Old
Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior
to the Expiration Date as described in the Prospectus.
If, pursuant to the terms of the Exchange Offer, the Company does not
accept and exchange all or any part of the Old Notes, or Old Notes are tendered
but withdrawn prior to the Expiration Date, or partial tenders are made, you
shall promptly return to, or, upon the order of, the tendering Holder,
certificates for Old Notes not exchanged.
Any certificates for unexchanged Notes forwarded by first-class mail shall
be so forwarded under an existing insurance policy protecting you and the
Company from loss or liability arising out of the non-receipt or non-delivery of
such certificates or by registered mail insured separately for the replacement
value of such certificates.
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9. For your services as the Exchange Agent hereunder, the Company shall pay
you in accordance with the schedule of fees attached hereto as EXHIBIT C. The
Company also will reimburse you, for your reasonable out-of-pocket expenses
(including, but not limited to, reason able attorneys' fees and expenses not
previously paid to you) in connection with your services promptly after
submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or in the Exhibits attached hereto or as may be
subsequently requested in writing of you by the Company and agreed to by
you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder of any New Notes,
any tender Documents or other documents prepared by the Company in
connection with the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability unless you shall
have been furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as pro
vided in Section 12 hereof in acting upon, the written or oral instructions
with respect to any matter relating to your acting as Exchange Agent
specifically cov ered by this Agreement or supplementing or qualifying any
such action of any officer or agent of such other person or persons as may
be designated or whom you reasonably believe have been designated by the
Company;
(e) may consult with counsel satisfactory to you, including counsel
for the Company, and the advice of such counsel shall be full and complete
authoriza tion and protection in respect in good faith and in accordance
with such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of the
Exchange Offer or as to the market value or decline or appreciation in
market value of any Old Notes or New Notes;
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(g) shall not be liable for any action which you may do or refrain
from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith;
(h) shall not be required to expend or risk your own funds or
otherwise to incur any liability, financial or otherwise, in the
performance of any of your duties hereunder or in the exercise of any of
your rights or powers if you shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to you against such
risk or liability is not assured to you;
(i) may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval or
other paper or docu ment believed by you to be genuine and to have been
signed or presented by the proper party or parties;
(j) shall be entitled, if in the administration of the provisions of
this Agreement you shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, to receive, and such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross
negligence, willful misconduct or bad faith on your part be deemed to be
conclusively proved and established, by a certificate signed by one of the
Company's authorized officers and delivered to you, and such certificate,
in the absence of gross negligence, willful misconduct or bad faith on your
part, shall be full warrant to you for any action taken, suffered or
omitted by it under the provisions of this Agreement upon the faith
thereof;
(k) may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents, attorneys,
custodians or nominees appointed with due care; and
(l) may at any time resign by giving 30 days' written notice of
resigna tion to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor and, upon the acceptance by the
successor of such appointment, release you from your obligations hereunder
by written instrument, a copy of which instrument shall be delivered to
each of you and your successor. If no successor shall have been so
appointed and have accepted appointment within 45 days after the giving of
such notice of resignation, you may petition any court of competent
jurisdiction for the appointment of a successor.
12. The Company covenants and agrees to indemnify and hold harmless you and
your officers, directors, employees, agents and affiliates (collectively, the
"Indemnified Parties" and each an "Indemnified Party") against any loss,
liability or reasonable expense of any nature
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(including reasonable attorneys' and other fees and expenses) incurred without
gross negligence, willful misconduct or bad faith on an Indemnified Party's
part, in connection with the admin istration of the duties of the Indemnified
Parties hereunder in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best effort to notify the Company by letter, or
by cable, telex or facsimile confirmed by letter, of the written assertion of a
claim against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a claim
or shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, however, that
failure to so notify the Company shall not relieve the Company of any liability
which it may otherwise have hereunder except such liability that is a direct
result of such Indemnified Party's failure to so notify the Company. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or legal action, and if the Company so elects or if the Indemnified Party
in such notice to the Company so directs, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event the Company assumes
such defense, the Company shall not be liable for any fees and expenses
thereafter incurred by such Indemnified Party which is incurred as a result of
the need to have separate representation because of a conflict of interest
between such Indemnified Party and the Company. No Indemnified Party shall enter
into a settlement or other compromise with respect to any indemnified loss,
liability or expense without the prior written consent or the Company, which
shall not be unreasonably withheld or delayed if not adverse to the Company's
interests. Obligations under this Section 12 shall survive the termination of
this Agreement or the earlier resignation or termination of the Exchange Agent.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York
(without regard to its conflicts of law principles) and shall inure to the
benefit of, and the obligations created hereby shall be binding upon the
successors and assigns of, the parties hereto. No other person shall acquire or
have any rights under or by virtue of this Agreement.
14. This Agreement may not be modified, amended or supplemented without an
express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
0Agent.
15. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
16. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or unpaired thereby.
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17. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 9 and 12 shall sur vive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Trustee any
certificates for Old Notes or New Notes, funds or property then held by you as
Exchange Agent under this Agreement.
18. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given on the date received if delivered by reputable
overnight courier or registered mail, postage prepaid, or sent by facsimile as
follows:
If to Company: HEALTHSOUTH Corporation
One HealthSouth Parkway
Birmingham, Alabama 35243
Attention: William W. Horton
Telephone: (205) 969-4977
Facsimile: (205) 969-4730
and a copy to: Haskell Slaughter & Young, L.L.C.
1200 AmSouth/Harbert Plaza
1901 Sixth Avenue North
Birmingham, Alabama 35203
Attention: F. Hampton McFadden, Jr.
Telephone: (205) 251-1000
Facsimile: (205) 324-1133
If to you: PNC Bank, N.A.
500 West Jefferson Street
Louisville, Kentucky 40202
Attention: David G. Metcalf
Telephone: (502) 581-3029
Facsimile: (502) 581-2705
or such other address or telecopy number as any of the above may have finished
to the other parties in writing for such purposes
19. This Agreement and all of the obligations hereunder shall be assumed by
any and all successors and assigns of the Company.
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If the foregoing is in accordance with your understanding, please indicate
your agreement by signing and returning the enclosed copy of this Agreement to
the Company.
Very truly yours,
HEALTHSOUTH Corporation
By
---------------------------------------
William W. Horton
Senior Vice President and Corporate Counsel
Agreed to this ______ day of August, 1998.
PNC Bank, N.A., as Exchange Agent
By
------------------------------------------
David G. Metcalf
Vice President
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EXHIBIT C
SCHEDULE OF FEES FOR SERVICES AS
EXCHANGE AGENT FOR
HEALTHSOUTH CORPORATION SENIOR NOTES DUE 2005 & 2008
EXCHANGE AGENT FEE
------------------
To cover the acceptance of the appointment, the review and consideration of the
documentation, communication with the working parties, normal functions of the
Exchange Agent including the establishment and maintenance of required records
and accounts, distribution of tender documentation, and receipt of tendered
Notes and supporting documentation.
Initial Fee of $850
Transaction Fee of $5.00 per tendered note
OUT-OF-POCKET EXPENSES, DTC SERVICE CHARGES AND EXPENSES, LEGAL FEES AND
EXPENSES, IF AND WHEN INCURRED, FEES AND DISBURSEMENTS AND SERVICES OF AN
UNANTICIPATED OR EXTRAORDINARY NATURE WILL BE CHARGED WHEN OR IF INCURRED.
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