EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
September 21, 2001 among VHS Phoenix Health Plan, Inc., a Delaware corporation
(the "Guaranteeing Subsidiary"), a subsidiary of Vanguard Health Systems, Inc.
(or its permitted successor), a Delaware corporation (the "Company"), the other
Guarantors (as defined in the Indenture referred to herein) and Bank One Trust
Company, N.A., 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
the indenture (as amended, the "Indenture"), dated as of July 30, 2001,
providing for the issuance of an aggregate principal amount of up to
$300,000,000 of 9-3/4% Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, Section 4.07 of the Indenture provides that 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 and therein (the "Note 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, the Company and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms; Conflict. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture. In the
event of any inconsistency between the terms of this Supplemental Indenture and
the Indenture, the terms of the Indenture shall control.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) To jointly and severally Guarantee to each Holder of Notes under
the Indenture and to the Trustee on behalf of the Holders:
(i) the due and punctual payment of the principal of, premium,
if any, and interest on each Note when and as the same
shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of
interest on the overdue principal of, premium, if any, and
interest on the Notes, to the extent lawful, and the due
and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance
with the terms the Notes and the Indenture; and
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(ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other obligations, the same
will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, at
Stated Maturity, by acceleration or otherwise, subject to
the limitations set forth in Section 10.01 of the
Indenture.
(b) The obligations hereunder are absolute and unconditional, and
nothing contained herein, or in the Indenture or in the Notes
(i) is intended to or shall impair, as among any Guarantor and
the Holders of the Notes, the obligations of the Guaranteeing
Subsidiary, upon failure by the Company, to pay to the Holders
of the Notes the principal of, premium, if any, and interest on
the Notes as and when the same shall become due and payable in
accordance with their terms, or (ii) is intended to or shall
affect the relative rights of the Holders and creditors of such
Guarantor, nor shall anything herein or therein prevent any
Holder or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default
under the Indenture.
Without limiting the foregoing, nothing contained herein, or in
the Indenture or in the Notes, will restrict the right of the
Trustee or the Holders to take any action to declare the Note
Guarantee to be due and payable prior to the Stated Maturity of
any Notes pursuant to Section 6.02 of the Indenture or to pursue
any rights or remedies thereunder.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of merger
or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest or
notice with respect to any such Note or debt evidenced thereby
and all demands whatsoever.
(d) This Note Guarantee shall not be discharged as to any Note
except by payment in full of the principal thereof, premium, if
any, and interest thereon and as provided in Sections 8.01, 8.02
and 8.03.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other
similar official acting in relation to the Company or such
Guarantor, any amount paid to the Trustee or such Holder in
respect of a Note, this Note 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.
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(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 VI of the Indenture for the purposes of this Note
Guarantee, 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 VI 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 Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor to the extent provided in the
Indenture.
3. Subordination of Guarantee. The Note Guarantee shall be subordinated
pursuant to, and in accordance with the terms and provisions of Article XII of
the Indenture, which are deemed incorporated by reference herein.
4. Execution and Delivery. The Note Guarantee shall not be valid or become
obligatory for any purpose with respect to a Note until the certificate of
authentication on such Note shall have been signed by or on behalf of the
Trustee.
5. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms. The
Guaranteeing Subsidiary may not sell or otherwise dispose of all or
substantially all of its assets, or 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 except in
accordance with the provisions set forth in the Indenture, including, without
limitation, Section 5.01 of the Indenture.
6. Releases. The Note Guarantee of the Guaranteeing Subsidiary will be
released in accordance with the provisions set forth in the Indenture,
including, without limitation, Section 10.3 of the Indenture.
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.
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, legality 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.
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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.
VHS PHOENIX HEALTH PLAN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
VANGUARD HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
BANK ONE TRUST COMPANY, N.A, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President