EXHIBIT 10.4
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RES-CARE, INC.,
as Issuer,
THE GUARANTORS PARTY HERETO,
as Guarantors,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of September 19, 2005
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10 5/8% Senior Notes due 2008
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FOURTH SUPPLEMENTAL INDENTURE dated as of September 19, 2005 (the "Fourth
Supplemental Indenture") among RES-CARE, INC., a Kentucky corporation, as issuer
(the "Issuer"), the GUARANTORS and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
WITNESSETH :
WHEREAS, pursuant to the Indenture, dated as of November 15, 2001, among
the Issuer, the Guarantors and National City Bank, the predecessor in interest
to the Trustee (as amended and supplemented through the date hereof, the
"Indenture") the Company has issued its 10 5/8% Senior Notes due 2008 (the
"Notes");
WHEREAS, Section 8.02 of the Indenture provides that the Issuer, the
Guarantors and the Trustee may, with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, enter into
a supplemental indenture for the purpose of amending the Indenture;
WHEREAS, the Issuer proposes to amend and supplement the Indenture (the
"Proposed Amendments") and has solicited consents to the Proposed Amendments
from Holders of record as of the close of business on August 29, 2005 of the
outstanding Notes, upon the terms and subject to the conditions set forth in the
Consent Solicitation Statement dated August 29, 2005 as the same may be amended,
supplemented or modified;
WHEREAS, the Issuer has received and delivered to the Trustee the requisite
consents to effect the Proposed Amendments under the Indenture;
WHEREAS, the Issuer has requested that the Trustee execute this Fourth
Supplemental Indenture;
WHEREAS, the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that the execution of this Fourth
Supplemental Indenture is authorized or permitted by the Indenture;
WHEREAS, the Issuer and the Guarantors have been authorized by Board
Resolutions of their respective Boards of Directors to enter into this Fourth
Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, by the Indenture
and by the governing instruments of the Issuer and the Guarantors, to make this
Fourth Supplemental Indenture a valid and binding agreement for the purposes
expressed herein, in accordance with its terms, have been duly done and
performed;
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NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, and for the equal and proportionate
benefit of the Holders, the Issuer, the Guarantors and the Trustee hereby agree
as follows:
Section 1. Indenture Amendments.
(a) The following sections of the Indenture and any definitions and
cross references thereto, are hereby deleted:
(i) Section 4.02 (Reports to Holders);
(ii) Section 4.05 (Taxes);
(iii) Section 4.06 (Limitations on Additional Indebtedness);
(iv) Section 4.07 (Limitations on Layering Indebtedness);
(v) Section 4.08 (Limitations on Restricted Payments);
(vi) Section 4.10 (Limitations on Transactions with Affiliates);
(vii) Section 4.11 (Limitations on Liens);
(viii) Section 4.12 (Conduct of Business);
(ix) Section 4.14 (Limitations on Dividend and Other Restrictions
Affecting Restricted Subsidiaries);
(x) Section 4.15 (Limitations on Designation of Unrestricted
Subsidiaries);
(xi) Section 4.16 (Limitations on Sale and Leaseback
Transactions);
(xii) Section 4.18 (Payments for Consent);
(xiii) Section 5.01 (Limitations on Mergers, Consolidations);
(xiv) Section 6.01(4) (Non-Payment Default);
(xv) Section 6.01(5) (Cross-Default);
(xvi) Section 6.01(6) (Judgments);
(xvii) Section 6.01(7) (Bankruptcy Events); and
(xviii) Section 6.01(8) (Bankruptcy Events).
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Section 2. Effective Time. This Fourth Supplemental Indenture shall become
effective immediately upon the satisfaction of the following conditions to the
adoption of the proposed amendments to the Indenture to be implemented hereby,
as provided in the Issuer's Offer to Purchase and Consent Solicitation Statement
dated August 29, 2005, which are the consummation by the Issuer of (1) an
amended and restated senior secured credit agreement in the aggregate principal
amount of $175 million; (2) the repayment in full of the outstanding term loan
under the Issuer's existing senior secured credit agreement; and (3) the
Issuer's receipt of the proceeds from an offering of $150 million principal
amount of new senior notes.
Section 3. Indenture Ratified. The Indenture, as amended and supplemented
by this Fourth Supplemental Indenture, is in all respects ratified and
confirmed, and this Fourth Supplemental Indenture and all of its provisions
shall be deemed a part thereof in the manner and to the extent herein provided,
and the Indenture, as modified in the manner and to the extent herein provided
shall be deemed a part hereof as though fully set forth herein.
Section 4. Governing Law. This Fourth Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York, as applied to contracts made and performed within the State of New York.
Section 5. Defined Terms. Unless otherwise indicated, capitalized terms
used herein and not defined shall have the respective meanings given such terms
in the Indenture.
Section 6. Multiple Counterparts. The parties may sign multiple
counterparts of this Fourth Supplemental Indenture. Each signed counterpart
shall be deemed an original, but all of them together represent one and the same
agreement.
Section 7. Headings. The headings of the Sections of this Fourth
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed all as of the date and year first written above.
RES-CARE, INC.
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President - Treasurer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Controller;
Interim Chief Financial Officer
ALTERNATIVE ▇▇▇▇▇▇▇, ▇▇▇.
BALD EAGLE ENTERPRISES, INC.
CAPITAL TX INVESTMENTS, INC.
CATX PROPERTIES, INC.
CNC/ACCESS, INC.
COMMUNITY ADVANTAGE, INC.
COMMUNITY ALTERNATIVES ILLINOIS, INC.
COMMUNITY ALTERNATIVES INDIANA, INC.
COMMUNITY ALTERNATIVES KENTUCKY, INC.
COMMUNITY ALTERNATIVES MISSOURI, INC.
COMMUNITY ALTERNATIVES NEBRASKA, INC.
COMMUNITY ALTERNATIVES TEXAS PARTNER,
INC.
COMMUNITY ALTERNATIVES VIRGINIA, INC.
EDUCARE COMMUNITY LIVING - TEXAS LIVING
CENTERS, INC.
HABILITATION OPPORTUNITIES OF OHIO, INC.
HEALTH SERVICES PERSONNEL, INC.
J. & J. CARE CENTERS, INC.
NORMAL LIFE, INC.
PEOPLESERVE, INC.
RAISE GEAUGA, INC.
RES-CARE ALABAMA, INC.
RES-CARE CALIFORNIA, INC. D/B/A RCCA
SERVICES
RES-CARE ILLINOIS, INC.
RES-CARE KANSAS, INC.
RES-CARE NEW JERSEY, INC.
RES-CARE NEW MEXICO, INC.
RES-CARE OHIO, INC.
RES-CARE OKLAHOMA, INC.
RES-CARE OTHER OPTIONS, INC.
RES-CARE PREMIER, INC.
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RES-CARE TENNESSEE, INC.
RES-CARE TRAINING TECHNOLOGIES, INC.
RES-CARE WASHINGTON, INC.
ROCKCREEK, INC.
RSCR CALIFORNIA, INC.
RSCR INLAND, INC.
RSCR WEST VIRGINIA, INC.
SOUTHERN HOME CARE SERVICES, INC.
TANGRAM REHABILITATION NETWORK, INC.
TEXAS HOME MANAGEMENT, INC.
THM HOMES, INC.
▇▇▇▇▇▇▇▇ GROUP HOMES, INC.
▇▇▇▇▇ MANAGEMENT, INC.
BOLIVAR DEVELOPMENTAL TRAINING CENTER,
INC.
BOLIVAR ESTATES, INC.
EBENEZER ESTATES, INC.
FORT ▇▇▇▇▇ ESTATES, INC.
HILLSIDE ESTATES, INC.
HYDESBURG ESTATES, INC.
INDIVIDUALIZED SUPPORTED LIVING, INC.
MEADOW LANE ESTATES, INC.
MISSOURI PROGRESSIVE SERVICES, INC.
OAK WOOD SUITES OF BOLIVAR, INC.
OAKVIEW ESTATES OF BOLIVAR, INC.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
SHA-REE ESTATES, INC.
SKYVIEW ESTATES, INC.
UPWARD BOUND, IN.
▇▇▇▇▇▇▇ ESTATES, INC.
CAREERS IN PROCESS, INC.
EDUCARE COMMUNITY LIVING - NORMAL LIFE,
INC.
NORMAL LIFE OF CALIFORNIA, INC.
NORMAL LIFE OF CENTRAL INDIANA, INC.
NORMAL LIFE FAMILY SERIVCES, INC.
NORMAL LIFE OF GEORGIA, INC.
NORMAL LIFE OF LAFAYETTE, INC.
NORMAL LIFE OF LAKE ▇▇▇▇▇▇▇, INC.
NORMAL LIFE OF LOUISIANA, INC.
NORMAL LIFE OF SOUTHERN INDIANA, INC.
RES-CARE FLORIDA, INC.
EDUCARE COMMUNITY LIVING CORPORATION -
AMERICA
PSI HOLDINGS, INC.
VOCA CORPORATION OF AMERICA
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VOCA RESIDENTIAL SERVICES, INC.
B.W.J. OPPORTUNITY CENTERS, INC.
THE CITADEL GROUP, INC.
EDUCARE COMMUNITY LIVING CORPORATION -
GULF COAST
EDUCARE COMMUNITY LIVING CORPORATION -
MISSOURI
EDUCARE COMMUNITY LIVING CORPORATION -
NEVADA EDUCARE
COMMUNITY LIVING CORPORATION - NEW
MEXICO EDUCARE
COMMUNITY LIVING CORPORATION - NORTH
CAROLINA EDUCARE
COMMUNITY LIVING CORPORATION - TEXAS
VOCA CORP.
VOCA CORPORATION OF FLORIDA
VOCA CORPORATION OF INDIANA
VOCA CORPORATION OF MARYLAND
VOCA CORPORATION OF NEW JERSEY
VOCA CORPORATION OF NORTH CAROLINA
VOCA CORPORATION OF OHIO
VOCA CORPORATION OF WASHINGTON, D.C.
VOCA CORPORATION OF WEST VIRGINIA, INC.
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
THE ACADEMY FOR INDIVIDUAL EXCELLENCE,
INC.
ALTERNATIVE YOUTH SERVICES, INC.
GENERAL HEALTH CORPORATION
YOUTHTRACK, INC.
EMPLOY-ABILITY UNLIMITED, INC.
RESCARE INTERNATIONAL, INC.
RESCARE DTS INTERNATIONAL, LLC
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
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EDUCARE COMMUNITY LIVING LIMITED
PARTNERSHIP
By: Community Alternatives Texas
Partner, Inc., its General Partner
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
NORMAL LIFE OF INDIANA
By: Normal Life of Central Indiana,
Inc., one of its General Partners
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
and
By: Normal Life of Southern Indiana,
Inc., the other General Partner
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
VOCA OF INDIANA, LLC, a limited
liability company
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
CREATIVE NETWORKS, LLC
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
ARBOR E&T LLC
By: /s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Vice President
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