Exhibit 4.2
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dates as of
February 12, 2002 (the "Instrument") by and among Res-Care, Inc., a corporation,
duly organized and existing under of the laws of the Commonwealth of Kentucky,
having its principal office at Louisville, Kentucky (the "Company"), Xxxxx Fargo
Bank Minnesota, National Association, a national banking association duly
organized and existing under the laws of the United States of America (the
"Successor Trustee"), and National City Bank, a national banking association
duly organized and existing under the laws of the United States of America as
trustee (the "Trustee").
WHEREAS, the Company has duly provided for the issuance pursuant to an
Indenture, dated as of November 15, 2001 (the "Indenture") of its 10 5/8% Senior
Notes due 2008, in the aggregate principal amount of $150,000,000 (the "Notes"),
all pursuant to and secured by the Indenture providing for the issuance of the
Notes;
WHEREAS, the Company appointed the Trustee under the Indenture;
WHEREAS, the Indenture provides that the Trustee may at any time resign
as the trustee under the Indenture;
WHEREAS, the Trustee desires to resign as Trustee upon the execution of
this Instrument.
WHEREAS, the Indenture further provides that the Company shall promptly
appoint a successor trustee;
WHEREAS, the Company wishes to appoint Xxxxx Fargo Bank Minnesota,
National Association as Successor Trustee;
WHEREAS, the Indenture provides that the Successor Trustee shall
execute, acknowledge and deliver to the Company and to the Trustee an instrument
accepting such appointment and thereupon the resignation of the Trustee shall
become effective and such Successor Trustee without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
of the Trustee;
WHEREAS, the Indenture further provides that no successor Trustee shall
accept appointment as such unless at the time it is qualified and eligible under
the Indenture.
WHEREAS, Xxxxx Fargo Bank Minnesota, National Association is qualified,
eligible and willing to accept such appointment as Successor Trustee;
NOW THEREFORE, THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND
ACCEPTANCE, WITNESSETH; that for an in consideration of the premises and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
it is hereby covenanted, declared and decreed by the Company, the Successor
Trustee and the Trustee as follows:
1. The Trustee hereby resigns from its position as Trustee under the
Indenture; provided, however, the resignation of the Trustee and its discharge
from the trust created by the Indenture shall be effective as of the date hereof
upon the execution and delivery of this Instrument by all the parties hereto.
2. The Company, in the exercise of the authority vested in it by the
Indenture hereby appoints Xxxxx Fargo Bank Minnesota, National Association as
Successor Trustee, with all rights, powers, trusts, duties and obligations under
the Indenture, such appointment to be effective as of the date hereof upon the
execution and delivery of this Instrument by all the parties hereto.
3. Successor Trustee hereby represents that it is qualified and
eligible under the provisions of the Indenture to be appointed successor
Trustee, and hereby accepts its appointment as successor Trustee, effective as
of the date hereof upon the execution and delivery of this Instrument by all
parties hereto, and hereby assumes the rights, powers, trusts, duties and
obligations of the Trustee, under the Indenture, subject to all terms and
provisions therein contained.
4. Trustee hereby grants, gives, bargains, sells, releases, conveys,
confirms, assigns, transfers and sets over to Successor Trustee and its
successors and assigns, all rights, title and interest of Trustee in and to the
trust estate and all rights, powers and trusts under the Indenture; and Trustee
does hereby pay over, assign and deliver to Successor Trustee any and all money,
if any, and property, if any, held by Trustee; and the Company for the purpose
of more fully and certainly vesting in and confirming to Successor Trustee said
estate, properties, rights, powers and, at the request of Successor Trustee,
joins in the execution hereof.
5. Notwithstanding the removal of the Trustee under the Indenture, the
Company shall remain obligated under the Indenture to compensate, reimburse and
indemnify the Trustee in connection with its trusteeship under the Indenture.
6. This Instrument may be executed in any number of counterparts, each
of which shall be an original but such counterparts shall together constitute
but one and the same instrument.
7. This instrument shall be governed by and construed in accordance
with the laws of the Commonwealth of Kentucky.
(Signature page follows)
IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment and Acceptance to be duly executed all as of the day
and year first above written.
RES-CARE, INC.
By: /s/ R. Xxx Xxxxx
Title: VP & Treasurer
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Successor Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ H. E. Xxxxxxxx
Title: Vice President
