EXHIBIT 4.5
FOURTH SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Fourth Supplemental Indenture") dated as
of November 11, 2002, among XXXXX MEDICAL SERVICES CORPORATION, a West Virginia
corporation, HEALTH CARE ALLIANCE, INC., a West Virginia corporation, and
MEDICAL SERVICES, INC., a West Virginia corporation, (the "Guaranteeing
Subsidiaries"), all subsidiary corporations of Team Health, Inc., a Tennessee
corporation (the "Company"), the other Guarantors (as defined in the Indenture,
the First Supplemental Indenture, the Second Supplemental Indenture and the
Third 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, the First Supplemental Indenture, the Second Supplemental
Indenture, and the Third 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 September 3, 2001 (the "Second
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, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Fourth 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;
1
(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.
(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.
2
(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 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
3
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 principle
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 Fourth 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.
4
8. COUNTERPARTS. The parties may sign any number of copies of this
Fourth 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 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 Fourth Supplemental Indenture effective as
of the date first set forth above.
GUARANTEEING SUBSIDIARIES:
XXXXX MEDICAL SERVICES CORPORATION
HEALTH CARE ALLIANCE, INC.
MEDICAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name:
Title:
COMPANY:
TEAM HEALTH, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name:
Title:
GUARANTORS:
ALLIANCE CORPORATION
XXXXXXXX XXXXXXX, INC.
INPHYNET HOSPITAL SERVICES, INC.
INPHYNET MEDICAL MANAGEMENT
INSTITUTE, INC.
XXXX X. XXXXXXX, INC.
XXXXXXX X. XXXXXXXXXXX, INC.
XXXXXX & XXXXXX, INC.
EMERGENCY COVERAGE CORPORATION
5
INPHYNET CONTRACTING SERVICES, INC.
INPHYNET LOUISIANA, INC.
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.
INTEGRATED SPECIALISTS MANAGEMENT
SERVCIES, INC.
PHYSICIAN INTEGRATION CONSULTING
SERVICES, INC.
AFTER HOURS PEDIATRIC PRACTICES, INC.
SPECTRUM CRUISE CARE, INC.
SPECTRUM HEALTHCARE, INC.
SPECTRUM HEALTHCARE NATIONWIDE, INC.
6
SPECTRUM HEALTHCARE RESOURCES, INC.
SPECTRUM HEALTHCARE
RESOURCES OF DELAWARE, INC.
SPECTRUM HEALTHCARE SERVICES, INC.
SPECTRUM PRIMARY CARE
OF DELAWARE, INC.
SPECTRUM PRIMARY CARE, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name:
Title:
IMBS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
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:
7
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:
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
/s/ Xxxxxxxx Xxxxxxxxx
By: ______________________________
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signer
8
