Exhibit 4.3
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as of
September 3, 2001, among INTEGRATED SPECIALISTS MANAGEMENT SERVICES, INC., a
California corporation, PHYSICIAN INTEGRATION CONSULTING SERVICES, INC., a
California corporation (the "Guaranteeing Subsidiaries"), both subsidiary
corporations of Team Health, Inc., a Tennessee corporation (the "Company"), the
other Guarantors (as defined in the Indenture and First Supplemental Indenture
referred to herein) and The Bank of New York as successor in interest to United
States Trust Company of New York, as trustee under the Indenture and First
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, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this 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:
(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
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(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
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(c) The following are hereby waived: diligence, presentment, demand or
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.
(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.
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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 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.
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(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 to 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 these
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
Guarantees.
(b) Any Guarantor not released from its obligations under its
Subsidiary Guarantees 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 10 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 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 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
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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 Supplemental Indenture effective as of the
date first set forth above.
GUARANTEEING SUBSIDIARIES:
INTEGRATED SPECIALISTS MANAGEMENT
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name:
Title:
PHYSICIAN INTEGRATION CONSULTING
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name:
Title:
COMPANY:
TEAM HEALTH, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name:
Title:
GUARANTORS:
ALLIANCE CORPORATION
XXXXXXXX XXXXXX, INC.
IMBS, INC.
INPHYNET HOSPITAL SERVICES, INC.
INPHYNET MEDICAL MANAGEMENT
INSTITUTE, INC.
XXXX X. XXXXXXX, INC.
XXXXXXX X. XXXXXXXXXXX, INC.
CLINIC MANAGEMENT SERVICES, INC.
XXXXXX & XXXXXX, INC.
EMERGENCY COVERAGE CORPORATION
EMERGICARE MANAGEMENT, INCORPORATED
INPHYNET CONTRACTING SERVICES, INC.
INPHYNET LOUISIANA, INC.
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HOSPITAL BASED PHYSICIAN SERVICES, INC.
INPHYNET ANESTHESIA OF WEST
VIRGINIA, INC.
MED ASSURE SYSTEMS, INC.
METROAMERICAN RADIOLOGY, INC.
NEO-MED, INC.
PARAGON ANESTHESIA, INC.
PARAGON CONTRACTING SERVICES, INC.
PARAGON IMAGING CONSULTANTS, INC.
QUANTUM PLUS, INC.
XXXXX, SEIDLEMANN & XXXXXXX CO.
ROSENDORF, MARGULIES, BORUSHOK &
XXXXXXXXXX RADIOLOGY ASSOCIATES
OF HOLLYWOOD, INC.
SARASOTA EMERGENCY MEDICAL
CONSULTANTS, INC.
SOUTHEASTERN EMERGENCY
PHYSICIANS, INC.
SOUTHEASTERN EMERGENCY PHYSICIANS
OF MEMPHIS, INC.
TEAM HEALTH FINANCIAL SERVICES, INC.
TEAM RADIOLOGY, INC.
THBS, INC.
VIRGINIA EMERGENCY PHYSICIANS, INC.
DRS. SHEER, XXXXXX & ASSOCIATES, INC.
EMERGENCY PHYSICIAN ASSOCIATES, INC.
EMERGENCY PROFESSIONAL SERVICES, INC.
THE EMERGENCY ASSOCIATES FOR
MEDICINE, INC.
EMERGENCY PHYSICIANS OF MANATEE, INC.
EMERGENCY MANAGEMENT SPECIALISTS, INC.
INPHYNET SOUTH BROWARD, INC.
NORTHWEST EMERGENCY PHYSICIANS,
INCORPORATED
INPHYNET JOLIET, INC.
ACCESS NURSE PM, INC.
ACUTE CARE SPECIALISTS CO.
MEDICAL MANAGEMENT RESOURCES, INC.
PARK MED OF FLORIDA, INC.
SENTINEL MEDICAL SERVICES, INC.
TEAM ANESTHESIA, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name:
Title:
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XXXXXXX XXXXXXX PARTNERSHIP
By: Xxxxxxxx Xxxxxxx, Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name:
Title:
By: Xxxx X. Xxxxxxx, Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name:
Title:
MT. DIABLO EMERGENCY PHYSICIANS,
A CALIFORNIA GENERAL PARTNERSHIP
By: Xxxxxxxx Xxxxxxx, Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name:
Title:
By: Xxxx X. Xxxxxxx, Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name:
Title:
PARAGON HEALTHCARE LIMITED PARTNERSHIP
By: Inphynet Hospital Services, Inc., General
Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name:
Title:
TEAM HEALTH SOUTHWEST, L.P.
By: Team Radiology, Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name:
Title:
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TEAM HEALTH BILLING SERVICES, L.P.
By: T.H.B.S., INC., General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name:
Title:
TRUSTEE:
THE BANK OF NEW YORK as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signer
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