Exhibit 4.3
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
September 16, 1999, among VENCOR OPERATING, INC., a Delaware corporation,
having its principal office at One Vencor Place, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Company"), VENCOR, INC., a Delaware
corporation, having its principal office at One Vencor Place, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Guarantor"), CHASE MANHATTAN TRUST
COMPANY, NATIONAL ASSOCIATION (successor to PNC Bank, National Association), a
national association duly organized and existing under the laws of the United
States, having its principal corporate trust office at One Oxford Centre, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Resigning Trustee"), and HSBC BANK USA,
a banking corporation and trust company duly organized and existing under the
laws of the State of New York, having its principal corporate trust office at
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Successor Trustee");
RECITALS
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There are presently issued and outstanding $300,000,000 in aggregate
principal amount of the Company's 9 7/8% Guaranteed Senior Subordinated Notes
due 2005 (the "Securities") under an Indenture, dated as of April 30, 1998 (the
"Indenture") between the Company, the Guarantor and the Resigning Trustee.
The Resigning Trustee wishes to resign as Trustee, Registrar and
Paying Agent under the Indenture; the Company and the Guarantor wish to appoint
the Successor Trustee to succeed the Resigning Trustee as Trustee, Registrar and
Paying Agent under the Indenture; and the Successor Trustee wishes to accept
appointment as Trustee, Registrar and Paying Agent under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein, the receipt and sufficiency of which is hereby acknowledged, the
Company, the Guarantor, the Resigning Trustee and the Successor Trustee agree as
follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 5.10 of the Indenture, the Resigning
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Trustee hereby notifies the Company and the Guarantor that the Resigning Trustee
is hereby resigning as Trustee under the Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to
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the Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by the Resigning Trustee.
(b) There is no action, suit or proceeding pending or, to the
best of the knowledge of the responsible Trust Officers of the
Resigning Trustee assigned to its Corporate Trust Department,
threatened against the Resigning Trustee before any court or
governmental authority arising out of any action or omission by the
Resigning Trustee as Trustee under the Indenture.
Section 103. The Resigning Trustee hereby assigns, transfers,
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delivers and confirms to the Successor Trustee all right, title and interest of
the Resigning Trustee in and to the trust under the Indenture, and all the
rights, powers, trusts, privileges and duties of the Trustee under the
Indenture. The Resigning Trustee shall execute and deliver such further
instruments and shall do such other things as the Successor Trustee may
reasonably require so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, trusts, privileges and duties hereby
assigned, transferred, delivered and confirmed to the Successor Trustee.
Section 104. The Resigning Trustee hereby resigns as Paying Agent for
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the Securities, as Registrar for the Securities and as the office or agency
maintained by the Company and the Guarantor pursuant to Section 3.02 of the
Indenture.
Section 105. The Resigning Trustee agrees to indemnify the Successor
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Trustee and save the Successor Trustee harmless from and against any and all
costs, claims, liabilities, losses or damages whatsoever (including the
reasonable fees, expenses and disbursements of the Successor Trustee's counsel
and other advisors), that the Successor Trustee suffers or incurs without
negligence or bad faith on its part arising solely out of actions or omissions
of the Resigning Trustee. The Successor Trustee will furnish to the Resigning
Trustee, promptly after receipt, all papers with respect to any action the
outcome of which would make operative the indemnity provided for in this
Section. The Successor Trustee shall notify the Resigning Trustee promptly in
writing (and, in any event, within no later than the fifth Business Day) of any
claim for which it may seek indemnity. The Resigning Trustee shall have the
option to defend the claim and the Successor Trustee shall cooperate fully in
the defense. If the Resigning Trustee shall assume the defense, then the
Resigning Trustee shall not pay for separate counsel of the Successor Trustee.
The Resigning Trustee shall not be obligated to pay for any settlement made
without its consent.
ARTICLE TWO
THE COMPANY and THE GUARANTOR
Section 201. (i) The Company hereby certifies that annexed hereto
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marked Exhibit A is a copy of resolutions duly adopted by the Board of Directors
of the Company, and in full force and effect on the date hereof authorizing
certain officers of the Company to: (a) accept the Resigning Trustee's
resignation as Trustee under the Indenture; (b) appoint the Successor Trustee as
Trustee under the Indenture; and (c) execute and deliver such agreements and
other instruments as may be necessary or desirable to effectuate the succession
of the Successor Trustee as Trustee under the Indenture. The Company shall
deliver a Secretary's Certificate of the Secretary or an Assistant Secretary
certifying as to the annexed resolutions. (ii) The Guarantor hereby certifies
that annexed hereto marked Exhibit B is a copy of resolutions duly adopted by
the Board of Directors of the Guarantor, and in full force and effect on the
date
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hereof authorizing certain officers of the Company to: (a) accept the Resigning
Trustee's resignation as Trustee under the Indenture; (b) appoint the Successor
Trustee as Trustee under the Indenture; and (c) execute and deliver such
agreements and other instruments as may be necessary or desirable to effectuate
the succession of the Successor Trustee as Trustee under the Indenture. The
Guarantor shall deliver a Secretary's Certificate of the Secretary or an
Assistant Secretary certifying as to the annexed resolutions.
Section 202. The Company and the Guarantor hereby appoint the
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Successor Trustee as Trustee under the Indenture and confirm to the Successor
Trustee all the rights, powers, trusts and duties of the Trustee under the
Indenture. The Company shall execute and deliver such further instruments and
shall do such other things as the Successor Trustee may reasonably require so as
to more fully and certainly vest and confirm in the Successor Trustee all the
rights, powers, privileges and duties hereby assigned, transferred, delivered
and confirmed to the Successor Trustee.
Section 203. The Company and the Guarantor hereby appoint the
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Successor Trustee as Paying Agent for the Securities, as Registrar for the
Securities and as the Company's and the Guarantor's office or agency maintained
pursuant to Section 3.02 of the Indenture.
Section 204. The Company hereby acknowledges and reaffirms its
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obligations to the Successor Trustee as set forth in Section 5.07 of the
Indenture, which obligations shall survive the execution hereof.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
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the Resigning Trustee, to the Company and to the Guarantor that the Successor
Trustee is qualified and eligible under the provisions of Section 5.09 of the
Indenture to act as Trustee under the Indenture.
Section 302. The Successor Trustee hereby accepts its appointment as
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Trustee under the Indenture and shall hereby be vested with all the rights,
powers, trusts and duties of the Trustee under the Indenture.
Section 303. Promptly after the execution and delivery of this
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Instrument, the Successor Trustee shall cause a notice, a form of which is
annexed hereto marked Exhibit C, to be sent to each Holder of the Securities in
accordance with the provisions of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless the
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context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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Section 402. This Instrument and the resignation, appointment and
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acceptance effected hereby shall be effective as of the close of business on the
date first above written upon the execution and delivery hereof by each of the
parties hereto.
Section 403. Notwithstanding the resignation of the Resigning Trustee
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effected hereby, the Company and the Guarantor shall remain obligated under
Section 5.07 of the Indenture to compensate, reimburse and indemnify the
Resigning Trustee in connection with its prior trusteeship under the Indenture.
Section 404. This Instrument shall be governed by and construed in
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accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 405. This Instrument may be executed in any number of
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counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
VENCOR OPERATING, INC.
By /s/ Xxxxx X. Xxxxxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxxxxx, Xx.
Title: Senior Vice President
VENCOR, INC.
By /s/ Xxxxx X. Xxxxxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxxxxx, Xx.
Title: Senior Vice President
CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HSBC BANK USA
By /s/ Metin Caner
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Name: Metin Caner
Title: Vice President
EXHIBIT A
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BOARD RESOLUTIONS
of
VENCOR OPERATING, INC.
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The following is a true copy of resolutions duly adopted on
September 10, 1999, by the Board of Directors of Vencor Operating, Inc.:
"RESOLVED, that any officer of this Company is hereby
authorized to accept the resignation of The Chase Manhattan
Bank (successor to PNC Bank, National Association), as
Trustee under the Indenture, dated as of April 30, 1998, of
Vencor Operating, Inc., and to appoint HSBC Bank USA as
Successor Trustee under said Indenture; and
FURTHER RESOLVED, that any officer of this Company is hereby
authorized to enter into such agreements and other
instruments as may be necessary or desirable to effectuate
the appointment of said Successor Trustee under said
Indenture."
EXHIBIT B
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BOARD RESOLUTIONS
of
VENCOR, INC.
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The following is a true copy of resolutions duly adopted on
September 10, 1999, by the Board of Directors of Vencor, Inc.:
"RESOLVED, that any officer of this Guarantor is hereby
authorized to accept the resignation of The Chase Manhattan
Bank (successor to PNC Bank, National Association), as
Trustee under the Indenture, dated as of April 30, 1998, of
Vencor Operating, Inc., and to appoint HSBC Bank USA as
Successor Trustee under said Indenture; and
FURTHER RESOLVED, that any officer of this Guarantor is
hereby authorized to enter into such agreements and other
instruments as may be necessary or desirable to effectuate
the appointment of said Successor Trustee under said
Indenture."
EXHIBIT C
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Notice to Holders of Vencor Operating, Inc. 9 7/8% Guaranteed Senior
Subordinated Notes due 2005:
We hereby notify you of the resignation of The Chase Manhattan Bank
(successor to PNC Bank, National Association), as Trustee under the Indenture,
dated as of April 30, 1998, pursuant to which your Notes were issued and are
outstanding.
Vencor Operating, Inc. and Vencor, Inc., as Guarantor of your Notes,
have appointed HSBC Bank USA, whose Corporate Trust Office is located at 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Successor Trustee under the Indenture,
which appointment has been accepted and has become effective.
HSBC BANK USA,
as Successor Trustee
