Exhibit 10.2.3
WAIVER dated as of February 16,
2006 (this “ Waiver ”) to the Amended and
Restated Credit Agreement dated as of March 21, 2005 (the
“ Credit Agreement ”), among HEALTHSOUTH
CORPORATION (the “ Borrower ”), the Lenders
party thereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent and Collateral Agent.
WHEREAS, the Borrower has informed
the Administrative Agent that it desires to issue Capital Stock of
the Borrower generating Net Proceeds of up to $400,000,000, with
such issuance to be completed no later than March 31, 2006
(such issuance, the “ Equity Issuance
”);
WHEREAS, Section 2.10(c) of the
Credit Agreement requires that the Borrower apply 50% of the Net
Proceeds from the issuance of any Capital Stock of the Borrower
(other than any such issuance to any Subsidiary) to prepay
Borrowings and/or cash collateralize Letters of Credit under the
Credit Agreement in accordance with the terms of the Credit
Agreement;
WHEREAS, the Borrower is
contemplating a series of transactions pursuant to which, among
other things, the Borrower will (a) offer to repurchase and,
to the extent tendered, repurchase substantially all of its
outstanding senior notes and senior subordinated notes,
(b) repay all outstanding Loans and pay all other amounts due
under, and terminate, the Credit Agreement and (c) repay
certain other outstanding indebtedness (the transactions referred
to in clauses (a) through (c) above being called the
“ Debt Refinancing ”);
WHEREAS, Section 2.10(g) of the
Credit Agreement requires that the Borrower notify the
Administrative Agent of any prepayment of Loans under the Credit
Agreement (in the case of a prepayment of Eurodollar Borrowings,
three Business Days before the date of such prepayment);
WHEREAS, the Borrower has requested
that compliance with (i) Section 2.10(c) of the Credit
Agreement be waived to the extent necessary to permit the Borrower
to use 100% of the Net Proceeds from the Equity Issuance to repay
certain Existing Indebtedness of the Borrower and
(ii) Section 2.10(g) of the Credit Agreement be waived to
the extent such Section requires irrevocable notice three Business
Days prior to a prepayment of Loans under the Credit Agreement in
connection with the Debt Refinancing, and the undersigned Lenders,
constituting the Required Lenders, are willing, on the terms and
subject to the conditions set forth herein, to grant such a
waiver;
NOW, THEREFORE, in consideration of
the above premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Defined Terms.
Capitalized terms used and not defined herein shall have meanings
given to them in the Credit Agreement.
SECTION 2. Waiver. Effective
as of the Effective Date (as defined in Section 5), the
Lenders hereby waive compliance by the Borrower with the provisions
of (i) Section
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2.10(c) of the Credit Agreement to the extent,
and only to the extent, necessary to permit the Borrower to apply
100% of Net Proceeds in an aggregate amount of up to $400,000,000
from the Equity Issuance to repay Existing Indebtedness of the
Borrower and (ii) Section 2.10(g) of the Credit Agreement
to the extent such Section requires irrevocable notice three
Business Days prior to a prepayment of Loans under the Credit
Agreement in connection with the Debt Refinancing.
SECTION 3. No Amendments or Other
Waivers; Confirmation. Except as expressly set forth herein,
this Waiver shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies
of the Lenders or the Administrative Agent under the Credit
Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle any Loan Party to
a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Waiver shall
apply and be effective only with respect to the provisions of the
Credit Agreement specifically referred to in Section 2 herein,
and only to the extent specified in Section 2
herein.
SECTION 4. Representations and
Warranties. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that as of the date
hereof:
(a) no Default or Event of Default
has occurred and is continuing; and
(b) the representations and
warranties of each Loan Party set forth in the Loan Documents are
true and correct in all material respects on and as of the date
hereof (and after giving effect to this Waiver) with the same
effect as though made on and as of the date hereof (except to the
extent such representations and warranties by their terms relate to
an earlier date, in which case such representations and warranties
were true and correct in all material respects on and as of such
earlier date).
SECTION 5. Effectiveness.
This Waiver shall become effective on the date (the
“Effective Date”) on which the Administrative Agent
shall have received counterparts hereof duly executed and delivered
by the Borrower and the Required Lenders.
SECTION 6. Waiver Fee. In
consideration of the agreements of the Lenders contained herein,
the Borrower agrees to pay to the Administrative Agent, for the
account of each Lender that delivers an executed counterpart of
this Waiver by 5:00 p.m., New York City time, on February 22,
2006, a waiver fee (the “ Waiver Fee ”) in an
amount equal to .05% of the aggregate amount of such Lender’s
Commitments and Term Loans on such date, provided that such
Waiver Fee shall not be payable unless and until this Waiver
becomes effective as provided in Section 5 above, in which
case such Waiver Fee shall become immediately payable by the
Borrower.
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SECTION 7. Expenses. The
Borrower agrees to reimburse the Administrative Agent for its
reasonable and documented out-of-pocket expenses in connection with
this Waiver, including the reasonable and documented fees, charges
and disbursements of counsel for the Administrative
Agent.
SECTION 8. Governing Law;
Counterparts. (a) This Waiver and the rights and
obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State
of New York.
(b) This Waiver may be executed by
one or more of the parties to this Waiver on any number of separate
counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. This Waiver may
be delivered by facsimile transmission electronic pdf of the
relevant signature pages hereof.
SECTION 9. Headings. The
headings of this Waiver are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
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IN WITN
