Exhibit 4.6
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENT INDENTURE (the "Fifth Supplemental Indenture") dated
as of September 9, 2003, among TEAM HEALTH, INC., a Tennessee corporation (the
"Company"), CORRECTIONAL HEALTHCARE ADVANTAGE, INC., a Florida corporation,
GREENBRIER EMERGENCY PHYSICIANS, INC., a West Virginia corporation, and THE
CONTRACTING MIDWEST, LLC, a Missouri limited liability company (the
"Guaranteeing Subsidiaries"), all subsidiary corporations of the "Company, the
other Guarantors (as defined in the Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture
and the Fourth Supplemental Indenture referred to herein) and The Bank of New
York as successor in interest to the United States Trust Company of New York,
as trustee under the Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture, and the Fourth
Supplemental Indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture") dated as of March 12, 1999, providing for the
issuance of an aggregate principal amount of up to $100.0 million of 12% Senior
Subordinated Notes due 2009 (the "Notes"); and
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantees"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
a supplemental indenture dated as of March 28, 2001 (the "First Supplemental
Indenture"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
supplemental indenture dated as of May 31, 2002 (The "Third Supplemental
Indenture"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
supplemental indenture dated as of May 31, 2002 (the "Third Supplemental
Indenture"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
a supplemental indenture dated as of November 11, 2002 (the "Fourth
Supplemental Indenture"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Fifth Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries 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. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiaries hereby agree as
follows:
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(a) Along with all other Guarantors, to jointly and severally Guarantee to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and
severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(c) The following are hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever.
(d) These Subsidiary Guarantees shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any Custodian, Trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, these
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of these Subsidiary Guarantees, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of these Subsidiary Guarantees.
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(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantees.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or fraudulent conveyance laws,
and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under Article 10 of
the Indenture shall result in the obligations of such Guarantor under its
Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiaries agree that the
Subsidiary Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantees.
4. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) No Guarantor may consolidate with or merge with or into (whether
or not such Guarantor is the surviving Person) or sell, assign, transfer
convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another Person unless:
(i) the Company or a Guarantor is the surviving corporation or
the entity or the Person formed by or surviving any such consolidation
or merger (if other than a Guarantor or the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the
laws of the United States, any state thereof or the District of
Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the Company) or
the entity or Person to which such sale, transfer, conveyance or other
disposition is made assumes all the obligations of such Guarantor
under the Notes, the Indenture and the Subsidiary Guarantees, pursuant
to a supplemental indenture in the form of Exhibit F to the Indenture;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(iv) the Company (i) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction and (ii) will, at the time of such transaction and after
giving pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 of the Indenture;
(b) In case of any such consolidation, merger, sale, or conveyance and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Subsidiary Guarantees endorsed upon
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the Notes and the due and punctual performance of all of the covenants and
conditions of the indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor. Such
successor corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so issued shall in
all respects have the same legal rank and benefit under the Indenture as
the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Subsidiary Guarantees
had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall
prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Company or another
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Guarantor, then
such Guarantor (in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a
sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under the
Subsidiary Guarantees; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of the
Indenture, including without limitation Section 4.10 of the Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Subsidiary
Guarantee.
(b) Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article 11 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present, or future director,
officer, employee, incorporator, stockholder, or agent of the Guaranteeing
Subsidiaries, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiaries under the Notes, any Subsidiary
Guarantees, the Indenture or this Fifth Supplemental Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
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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 Fifth
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 Fifth
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiaries and the
Company.
IN WITNESS WHEREOF, the undersigned, through their duly-authorized
representatives, have executed this Fifth Supplemental Indenture effective as
of the date first set forth above.
GUARANTEEING SUBSIDIARIES:
CORRECTIONAL HEALTHCARE ADVANTAGE, INC.
GREENBRIER EMERGENCY PHYSICIANS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: V.P.
TH CONTRACTING MIDWEST, LLC
By: Inphynet Contracting Services, Inc., Sole Member
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: V.P.
COMPANY:
TEAM HEALTH, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: V.P.
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GUARANTORS:
ACCESS NURSE PM, INC.
AFTER HOURS PEDIATRICS, INC. (formerly After
Hours Pediatric Practices, Inc.)
CLINIC MANAGEMENT SERVICES, INC. (survivor of
a merger with Park Med of Florida, Inc.)
METROAMERICAN RADIOLOGY, INC.
XXXXXXXXX XXXXXXXXX XXXXXXXX & XXXXXXXXXX
RADIOLOGY ASSOCIATES OF HOLLYWOOD, INC.
TEAM ANESTHESIA, INC.
XXXXXXX X. XXXXXXXXXXX, INC.
XXXXXX & XXXXXX, INC.
DRS. SHEER, XXXXXX AND ASSOCIATES, INC.
EMERGENCY COVERAGE CORPORATION
EMERGENCY PHYSICIAN ASSOCIATES, INC.
EMERGENCY PROFESSIONAL SERVICES, INC.
INPHYNET CONTRACTING SERVICES, INC. (survivor of
mergers with Acute Care Specialists Co., Alliance
Corporation, Emergency Management Specialists, Inc.,
Inphynet Anesthesia of West Virginia, Inc., Inphynet
Louisiana, Inc., Inphynet Medical Management Institute,
Inc., Neo-Med, Inc., Paragon Anesthesia, Inc., and
Virginia Emergency Physicians, Inc.)
INPHYNET SOUTH BROWARD, INC.
INPHYNET JOLIET, INC.
XXXXXXXX XXXXXXX, INC.
INPHYNET HOSPITAL SERVICES, INC.
XXXX X. XXXXXXX, INC.
XXXXX MEDICAL SERVICES CORPORATION
HEALTH CARE ALLIANCE, INC.
MEDICAL SERVICES, INC.
MEDASSURE SYSTEMS, INC. (survivor of a merger with
THBS, Inc.)
NORTHWEST EMERGENCY PHYSICIANS INCORPORATED
PARAGON CONTRACTING SERVICES, INC. (survivor of
mergers with Sarasota Emergency Medical Consultants,
Inc. and Emergency Physicians of Manatee, Inc.)
PARAGON IMAGING CONSULTANTS, INC.
QUANTUM PLUS, INC.
XXXXX, XXXXXXXXXX & XXXXXXX CO.
SOUTHEASTERN EMERGENCY PHYSICIANS OF MEMPHIS, INC.
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SOUTHEASTERN EMERGENCY PHYSICIANS, INC.
(survivor of a merger with Hospital
Based Physician Services, Inc.)
TEAM RADIOLOGY, INC.
THE EMERGENCY ASSOCIATES FOR MEDICINE,
INC. (survivor of a merger with
Sentinel Medical Services, Inc.)
TEAM HEALTH ANESTHESIA MANAGEMENT
SERVICES, INC. (f/k/a Integrated
Specialists Management Services,
Inc.)
MEDICAL MANAGEMENT RESOURCES, INC.
PHYSICIAN INTEGRATION CONSULTING
SERVICES, INC.
SPECTRUM HEALTHCARE SERVICES, INC.
SPECTRUM HEALTHCARE, INC.
SPECTRUM HEALTHCARE RESOURCES OF
DELAWARE, INC.
SPECTRUM HEALTHCARE RESOURCES, INC.
AMERICAN CLINICAL RESOURCES, INC. (f/k/a
Spectrum Healthcare Nationwide,
Inc.)
SPECTRUM PRIMARY CARE OF DELAWARE, INC.
SPECTRUM PRIMARY CARE, INC.
SPECTRUM CRUISE CARE, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
------------------------------
Title: V.P.
------------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TEAM HEALTH FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
------------------------------
Title: V.P.
------------------------------
Address: 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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IMBS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: Executive Vice President
--------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXXXXX XXXXXXX PARTNERSHIP, a California
General Partnership
By: Xxxxxxxx Xxxxxxx, Inc., its general
partner
Xxxx X. Xxxxxxx, Inc., its general
partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
---------------------------
Title: V.P.
--------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
MT. DIABLO EMERGENCY PHYSICIANS, a
California General Partnership
By: Xxxxxxxx Xxxxxxx, Inc., its general
partner
Xxxx X. Xxxxxxx, Inc., its general
partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
---------------------------
Title: V.P.
--------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
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PARAGON HEALTHCARE LIMITED PARTNERSHIP
By: InPhyNet Hospital Services, Inc., general partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: V.P.
-------------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TEAM HEALTH BILLING SERVICES, L.P.
By: Team Health, Inc., general partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: V.P.
-------------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TEAM HEALTH SOUTHWEST L.P.
By: Team Radiology, Inc., general partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: V.P.
-------------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUSTEE:
THE BANK OF NEW YORK as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signer
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