Exhibit 4.2
SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
January 23, 2004, among Lake Mead Hospital, Inc. (the "Guaranteeing
Subsidiary"), a subsidiary of IASIS Healthcare Corporation (or its successor), a
corporation organized under the laws of Delaware (the "Company"), and The Bank
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 (the "Indenture"), dated as of June 6, 2003, providing for
the issuance of an aggregate principal amount at maturity of $100,000,000 of
8.5% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary 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 Guarantee"); 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 Subsidiary 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 Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture, 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
1
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 is 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) This Subsidiary Guarantee 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, this Subsidiary
Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary 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 this Subsidiary Guarantee,
notwithstanding any stay,
2
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 this
Subsidiary Guarantee.
(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 Guarantee.
(i) The obligations hereunder shall be subject to the
subordination provisions of the Indenture.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain
Terms.
(a) The Guaranteeing Subsidiary may not consolidate with
or merge with or into (whether or not such Guarantor
is the surviving Person) another corporation, Person
or entity whether or not affiliated with such
Guarantor unless:
(i) subject to Section 11.05 of the
Indenture, the Person formed by or surviving
any such consolidation or merger (if other
than a Guarantor or the Company)
unconditionally assumes all the obligations
of such Guarantor, pursuant to a
supplemental indenture in form and substance
reasonably satisfactory to the Trustee,
under the Notes, the Indenture and the
Subsidiary Guarantee on the terms set forth
herein or therein; and
(ii) immediately after giving effect to
such transaction, no Default or Event of
Default exists.
(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 Guarantee 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
3
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 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 its Subsidiary Guarantee;
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 Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary 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
4
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
SEC 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 contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: January 23, 2004
LAKE MEAD HOSPITAL, INC.
By: /s/ Frank A. Coyle
---------------------------------------
Name: Frank A. Coyle
-------------------------------------
Title: Secretary
------------------------------------
THE BANK OF NEW YORK,
as Trustee
By: /s/ Robert A. Massimillo
---------------------------------------
Name: Robert A. Massimillo
-------------------------------------
Title: Vice President
------------------------------------
5
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Indenture, dated as of January 23, 2004, among Lake Mead Hospital, Inc., as
Guaranteeing Subsidiary, and The Bank of New York, as Trustee, to be duly
executed and attested, all as of the date first above written.
MEMORIAL HOSPITAL OF TAMPA, LP
MESA GENERAL HOSPITAL, LP
ODESSA REGIONAL HOSPITAL, LP
PALMS OF PASADENA HOSPITAL, LP
SOUTHWEST GENERAL HOSPITAL, LP
ST. LUKE'S BEHAVIORAL HOSPITAL, LP
ST. LUKE'S MEDICAL CENTER, LP
TEMPE ST. LUKE'S HOSPITAL, LP
TOWN & COUNTRY HOSPITAL, LP
JORDAN VALLEY HOSPITAL, LP
THE MEDICAL CENTER OF SOUTHEAST TEXAS, LP
DAVIS HOSPITAL & MEDICAL CENTER, LP
By: IASIS HEALTHCARE HOLDINGS, INC.,
as General Partner
By: /s/ Frank A. Coyle
-------------------------------------------
Name: Frank A. Coyle
-----------------------------------------
Title: Secretary
----------------------------------------
IASIS HEALTHCARE CORPORATION
ARIZONA DIAGNOSTIC & SURGICAL CENTER, INC.
BAPTIST JOINT VENTURE HOLDINGS, INC.
BEAUMONT HOSPITAL HOLDINGS, INC.
BILTMORE SURGERY CENTER HOLDINGS, INC.
CLINICARE OF UTAH, INC.
DAVIS HOSPITAL HOLDINGS, INC.
DAVIS SURGICAL CENTER HOLDINGS, INC.
FIRST CHOICE PHYSICIANS NETWORK HOLDINGS, INC.
IASIS HEALTHCARE HOLDINGS, INC.
IASIS MANAGEMENT COMPANY
JORDAN VALLEY HOSPITAL HOLDINGS, INC.
METRO AMBULATORY SURGERY CENTER, INC.
PIONEER VALLEY HEALTH PLAN, INC.
PIONEER VALLEY HOSPITAL, INC.
ROCKY MOUNTAIN MEDICAL CENTER, INC.
SALT LAKE REGIONAL MEDICAL CENTER, INC.
IASIS HOSPITAL NURSE STAFFING COMPANY
SOUTHRIDGE PLAZA HOLDINGS, INC.
6
SSJ ST. PETERSBURG HOLDINGS, INC.
BROOKWOOD DIAGNOSTIC CENTER OF TAMPA, INC.
IASIS PHYSICIAN SERVICES, INC.
CLINICARE OF TEXAS, INC.
IASIS FINANCE, INC.
IASIS HOME INFUSION AND MEDICAL EQUIPMENT,
INC.
IASIS TRANSCO, INC.
MCS/AZ, INC.
PALMS OF PASADENA HOMECARE, INC.
TAMPA BAY STAFFING SOLUTIONS, INC.
BILTMORE SURGERY CENTER, INC.
By: /s/ Frank A. Coyle
-------------------------------------------
Name: Frank A. Coyle
-----------------------------------------
Title: Secretary
----------------------------------------
IASIS HEALTHCARE MSO SUB OF SALT LAKE CITY,
LLC
By: /s/ Frank A. Coyle
-------------------------------------------
Name: Frank A. Coyle
-----------------------------------------
Title: Secretary
----------------------------------------
7