Exh. 2
THE SERVICEMASTER COMPANY
(A Delaware Corporation)
as the New Parent Corporation
and
HARRIS TRUST AND SAVINGS BANK
as Trustee
---------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 1, 1998
Supplemental to
Indenture Dated as of August 15, 1997
and
First Supplemental Indenture Dated as of August 15, 1997
---------------
SECOND SUPPLEMENTAL INDENTURE dated as of January 1, 1998 between The
ServiceMaster Company (which is a Delaware corporation and is hereinafter called
both the "New Parent Corporation") and Harris Trust and Savings Bank, an
Illinois banking corporation, as Trustee (hereinafter called the "Trustee").
WHEREAS: The ServiceMaster Company Limited Partnership (which was a
Delaware limited partnership and is herein called the "Predecessor Obligor"),
ServiceMaster Limited Partnership (which was a Delaware limited partnership and
is herein called the "Predecessor Guarantor") and the Trustee executed and
delivered an Indenture dated as of August 15, 1997 (hereinafter called the
"Original Indenture") providing for the issuance by the Predecessor Obligor from
time to time of its debentures, notes or other evidences of indebtedness in one
or more series (hereinafter called the "Securities") and the guarantee by the
Predecessor Guarantor of all Securities which may be issued under the Indenture.
WHEREAS: The Predecessor Obligor, the Predecessor Guarantor, and the
Trustee executed and delivered the First Supplement to the Original Indenture
(hereinafter called the "First Supplement") which was also dated as of August
15, 1997 and pursuant to which (i) the Predecessor Obligor issued under the
Original Indenture and the First Supplement $100,000,000 aggregate principal
amount of 6.95% Notes due August 15, 2007 (which is limited in aggregate
principal amount to $100,000,000 and the outstanding Notes in which are therein
and herein called the "2027 Notes"), (ii) the Predecessor Obligor issued under
the Original Indenture and the First Supplement a series of 7.45% Notes due
August 15, 2027 (which is limited in aggregate principal amount to $200,000,000
and the outstanding Notes in which are therein and herein called the "2027
Notes"), and (iii) the Predecessor Guarantor guaranteed the 2007 Notes and the
2027 Notes.
WHEREAS: No Securities other than the 2007 Notes and the 2027 Notes
have been issued under the Indenture.
WHEREAS: The Predecessor Obligor, the Predecessor Guarantor and the New
Parent Corporation have entered into an amendment and restatement dated as of
October 3, 1997 of a Merger and Reorganization Agreement (which as so amended
and restated is herein called the "Merger Agreement") and the New Parent
Corporation has executed and filed in Delaware a certificate (the "Merger
Certificate") to cause the occurrence of the merger specified in Part 2 of the
Merger Agreement (herein called the "Merger"). The Merger consummated 12:01 AM
Eastern Standard Time on January 1, 1998 and by operation of the Merger (i) the
Predecessor Obligor and the Predecessor Guarantor were merged into the New
Parent Corporation effective at that time and (ii) the New Parent Corporation
became responsible for and subject to all obligations of the Predecessor Obligor
and the Predecessor Guarantor under the Original Indenture, the First
Supplement, the 2007 Notes, the 2027 Notes and the Predecessor Guarantor's
Guarantees of the 2007 Notes and the 2027 Notes and (iii) the New Parent
Corporation became entitled to the rights of the Predecessor Obligor and the
Predecessor Guarantor under the instruments cited in clause (ii).
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WHEREAS: The Merger is permitted under Article 6 of the Indenture. The
New Parent Corporation has executed this Second Supplemental Indenture to comply
with the requirements of Article 6 applicable to the Merger.
WHEREAS: All conditions and requirements necessary to make this Second
Supplemental Indenture a valid and binding instrument in accordance with its
terms and the terms of the Original Indenture have been satisfied.
NOW, THEREFORE:
SECTION 1. The New Parent Corporation hereby expressly assumes (i) all
of the obligations of the Predecessor Obligor and the Predecessor Guarantor on
the 2007 Notes, the 2027 Notes, the Original Indenture, and the First
Supplement, (ii) the primary obligation for the due and punctual performance and
observance of all of the covenants and conditions which the 2007 Notes, the 2027
Notes, the Original Indenture, and the First Supplement require to be performed
or observed by the Predecessor Obligor or the Predecessor Guarantor.
SECTION 2. The New Parent Corporation hereby warrants that: (i) every
statement made in every paragraph in this Second Supplemental Indenture in a
paragraph which begins "WHEREAS" is true; (ii) immediately after giving effect
to the Merger, no Default (as defined in the Original Indenture) has occurred;
(iii) all other preconditions provided for in the Original Indenture or the
First Supplemental Indenture relating to the Merger have been complied with; and
(iv) this Second Supplemental Indenture constitutes the legal, valid and binding
obligation of the New Parent Corporation enforceable against the New Parent
Corporation in accordance with its terms. The New Parent Corporation hereby
consents and agrees that the Trustee shall have the right to rely upon every
warranty and agreement made by the New Parent Corporation in this Second
Supplemental Indenture.
SECTION 3. The parties hereby agree that:
(a) From and after January 1, 1998, the term "Company" wherever it
appears in the Original Indenture, the First Supplement, the
2007 Notes or the 2027 Notes shall be deemed to refer to the
New Parent Corporation.
(b) The New Parent Corporation shall hereafter be entitled to all
rights which the Indenture or the First Supplement purport to
award to the entity designated "the Company" therein including
but not limited to the right to issue Securities thereunder in
the name of the Company on and after January 1, 1998.
(c) All provisions in the Indenture, the First Supplement, the
2007 Notes or the 2027 Notes which refer to the Guarantor or
to the Guarantees shall not apply on or after January 1, 1998
and after such date all such provisions shall be eliminated
for each such document.
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SECTION 4. The parties hereby agree that nothing in this Second
Supplemental Indenture, expressed or implied, is intended or shall be construed
to confer upon or give to any person (other than the parties hereto, the holders
of the 2007 Notes and 2027 Notes and the holders of any other Securities at any
time issued under the Indenture) any right, remedy or claim under or by reason
of this Second Supplemental Indenture or any covenant, stipulation, promise or
agreement contained herein; all the covenants, stipulations, promises and
agreements contained herein being for the sole and exclusive benefit of the
parties hereto and their successors, and the holders from time to time of the
Securities.
SECTION 5. The Original Indenture, the First Supplemental Indenture,
the 2007 Notes and the 2027 Notes as amended by this Second Supplemental
Indenture are hereby in all respects ratified and confirmed. Every holder of
Securities heretofore or hereafter authenticated and delivered under the
Original Indenture shall be bound hereby and by the terms of the Original
Indenture and the First Supplemental Indenture as amended hereby.
SECTION 6. The Trustee, for itself and its successor or successors,
accepts the trust of the Original Indenture and the First Supplemental Indenture
as amended by this Second Supplemental Indenture, and agrees to perform the
same, but only upon the terms and conditions set forth in the Original Indenture
and First Supplemental Indenture, including the terms and provisions defining
and limiting the liabilities and responsibilities of the Trustee, which terms
and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Original
Indenture, and, without limiting the generality of the foregoing, the recitals
contained herein shall be taken as the statements of the New Parent Corporation
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Second
Supplemental Indenture other than as to the validity of its execution and
delivery by the Trustee.
SECTION 7. This Second Supplemental Indenture 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 installment.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
The ServiceMaster Company
a Delaware corporation
as the New Parent Corporation
By: /s/ Vernon T. Squires
Name: Vernon T. Squires
Title: Sr. Vice President and
General Counsel
Harris Trust and Savings Bank,
as Trustee
By: /s/ J. Bartolini
Name: J. Bartolini
Title: Vice President
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STATE OF ILLINOIS )
)
COUNTY OF DUPAGE )
BEFORE ME, the undersigned authority, on this 1st day of January, 1998
personally appeared Vernon T. Squires, General Counsel of The ServiceMaster
Company, a Delaware corporation (the "New Parent Corporation"), known to me (or
proved to me by introduction upon the oath of a person known to me) to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of the New Parent
Corporation for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS 1st DAY OF JANUARY 1998
/s/ Latressa G. Stahlberg
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name: Latressa G. Stahlberg
Commission Expires: 6/2/2000
STATE OF ILLINOIS )
)
COUNTY OF COOK )
BEFORE ME, the undersigned authority, on this 1st day of January 1998,
personally appeared J. Bartolini, Vice President of Harris Trust and Savings
Bank, an Illinois banking corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of Harris Trust and Savings Bank for
the purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS 1st DAY OF JANUARY 1998
/s/ T. Muzquiz
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name: T. Muzquiz
Commission Expires: 8-13-2001
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