Exhibit 4.5
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of February 15, 2006, between 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, dated as of May 22, 2002, as supplemented by the
Amendment to Indenture, dated as of August 27, 2003 and the First Supplemental
Indenture, dated as of June 24, 2004 (as so supplemented, the "Indenture"),
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 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 an 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
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. AMENDMENTS TO THE DEFINITIONS IN THE 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 PRIOR TO THE FALL-AWAY EVENT
Section 4.16............................... LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
SUBSIDIARIES
Section 4.18............................... LIMITATIONS ON LIENS AFTER THE FALL-AWAY EVENT
Section 4.19............................... LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS
4. AMENDMENTS TO ARTICLE 5 - SURVIVING ENTITY.
(a) Section 5.01 of the Indenture is hereby amended by deleting
clauses (ii), (iii) and (iv) thereof.
(b) Section 5.02 of the Indenture is hereby amended by deleting
paragraph (b) thereof.
5. AMENDMENTS TO ARTICLE 6 - EVENTS OF DEFAULT. Section 6.01 of the
Indenture is hereby amended by deleting paragraphs (d) and (e) 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.
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) 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.
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
Second Supplemental Indenture to be duly executed and attested, all as of the
date first written above.
HEALTHSOUTH CORPORATION
By: /s/ GREGORY L. DOODY
-------------------------------
Name: Gregory L. Doody
Title: Executive Vice President,
General Counsel and
Secretary
THE BANK OF NOVA SCOTIA TRUST COMPANY
OF NEW YORK, AS TRUSTEE
By: /s/ JOHN F. NEYLAN
--------------------------------
Name: John F. Neylan
Title: Trust Officer