Exh. 4.3 THE SERVICEMASTER COMPANY
as the Company,
and
XXXXXX TRUST AND SAVINGS BANK
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of March 2, 1998
(Supplemental to Indenture Dated as of August 15, 1997)
Series 7.10% Notes due 2018
Series 7.25% Notes due 2038
THIRD SUPPLEMENTAL INDENTURE dated as of March 2, 1998 between The
ServiceMaster Company, a Delaware corporation, as the Company (the "Company")
and Xxxxxx Trust and Savings Bank, an Illinois banking corporation, as Trustee
(the "Trustee").
WHEREAS, each of the Company's predecessors, The ServiceMaster Company
Limited Partnership ("SMCLP") and ServiceMaster Limited Partnership, ("SMLP"),
and the Trustee executed and delivered an Indenture dated as of August 15, 1997
(as amended by the First Supplemental Indenture dated as of August 15, 1997
among SMCLP, SMLP and the Trustee and the Second Supplemental Indenture dated as
of January 1, 1998 between the Company and the Trustee, the "Original
Indenture") providing for the issuance from time to time of its debentures,
notes or other evidences of indebtedness in one or more series (the
"Securities"); and
WHEREAS, each of SMCLP and SMLP has been merged with and into the
Company in a manner permitted by Sections 6.01 of the Original Indenture and the
Company, as the surviving Person of each such merger, has succeeded to each of
their respective obligations under the Original Indenture in accordance with
Section 6.02 of the Original Indenture; and
WHEREAS, pursuant to the terms of the Original Indenture, the Company
wishes to provide for the establishment of two new series of its Securities
known as the 7.10% Notes due March 1, 2018 and the 7.25% Notes due March 1, 2038
(the "2018 Notes" and "2038 Notes", respectively, and collectively, the "New
Securities"); and
WHEREAS, Section 10.01(5) of the Original Indenture provides that the
Original Indenture may be amended without the consent of the holders of the
Securities in order to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities pursuant to Section
2.03 of the Original Indenture; and
WHEREAS, all conditions and requirements necessary to make this Third
Supplemental Indenture a valid and binding instrument in accordance with its
terms and the terms of the Original Indenture have been satisfied.
NOW, THEREFORE:
In consideration of the premises and of the mutual covenants herein
contained, and in order to provide for payment of the principal of (and premium,
if any) and interest on all of the Securities, according to their tenor, the
Company and the Trustee hereby covenant and agree:
SECTION 1. For all purposes of this Third Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires,
all capitalized terms used and not defined herein that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture.
Section 1.01 of the Original Indenture is amended and supplemented as
follows, in each case solely for purposes of the New Securities:
"Comparable Treasury Issue" means, in respect of the 2018 Notes or the
2038 Notes, as the case may be, the United States Treasury security selected by
the Independent Investment Banker as having a maturity most comparable to the
remaining term of 2018 Notes or the 2038 Notes, as the case may be, that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the 2018 Notes or the 2038 Notes, as the case
may be.
Page 1
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, the average of
the Reference Treasury Dealer Quotations for such third business day.
"Independent Investment Banker" means X.X. Xxxxxx Securities Inc. or, if
such firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing in the United
States appointed by the Board of Directors of the Company in good faith.
"Reference Treasury Dealer" means each of X.X. Xxxxxx Securities Inc.
and its respective successors; provided, however, that if such firm ceases to be
a primary U.S. Government securities dealer in New York, New York (a "Primary
Treasury Dealer") or otherwise fails to provide a Reference Treasury Dealer
Quotation, the Company will substitute therefor any other Primary Treasury
Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York,
New York time, on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to the 2018 Notes or
the 2038 Notes, as the case may be, the remaining scheduled payments of the
principal thereof to be redeemed and interest thereon that would be due after
the related redemption date but for such redemption; provided, however, that if
such redemption date is not an interest payment date with respect to such note,
the amount of the next succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to such redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
SECTION 2. Pursuant to Sections 2.01 and 2.03 of the Original
Indenture, there is hereby authorized and the Company shall issue the following
series of Securities, the form of each Security of each series to be
substantially in the form set forth in Exhibits 1 and 2:
(a) A series of notes under the Original Indenture designated as the
7.10% Notes due March 1, 2018 (the "2018 Notes"). The series of 2018 Notes will
be limited to $150,000,000 aggregate principal amount and will mature on March
1, 2018 at 100% of their principal amount, unless earlier redeemed. The 2018
Notes will be issuable in denominations of $1,000 or integral multiples thereof.
Each 2018 Note will bear interest from March 2, 1998 at the rate of 7.10% per
annum, payable semi-annually (to holders of record at the close of business on
February 15 or August 15 immediately preceding the interest payment date) on
March 1 and September 1 of each year beginning September 1, 1998. The 2018 Notes
will be redeemable, at any time prior to maturity at the option of the Company,
in whole or in part, upon not less than 30 or more than 60 days prior written
notice, at a redemption price equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the redemption date, on a semi-annual
basis, at the Treasury Yield plus 20 basis points, together with all accrued but
unpaid interest, if any, to the date of redemption in either case; provided,
however, that interest installments due on an interest payment date that is on
or prior to the date of redemption will be payable to holders who are holders of
record of such notes as of the close of business on the fifteenth day next
preceding such interest payment date. The 2018 Notes will be issued only as
Registered Global Securities, without coupons, held by the Depositary, which
will be the Depository Trust Company, and will not be issued in definitive
registered form except pursuant to Section 2.07 of the Original Indenture.
Page 2
(b) A series of notes under the Original Indenture designated as the
7.25% Notes due March 1, 2038 (the "2038 Notes"). The series of 2038 Notes will
be limited to $150,000,000 aggregate principal amount and will mature on March
1, 2038 at 100% of their principal amount, unless earlier redeemed. The 2038
Notes will be issuable in denominations of $1,000 or integral multiples thereof.
Each 2038 Note will bear interest from March 2, 1998 at the rate of 7.25% per
annum, payable semi-annually (to holders of record at the close of business on
February 15 or August 15 immediately preceding the interest payment date) on
March 1 and September 1 of each year beginning September 1, 1998. The 2038 Notes
will be redeemable, at any time prior to maturity at the option of the Company,
in whole or in part, upon not less than 30 or more than 60 days prior written
notice, at a redemption price equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the redemption date, on a semi-annual
basis, at the Treasury Yield plus 20 basis points, together with all accrued but
unpaid interest, if any, to the date of redemption in either case; provided,
however, that interest installments due on an interest payment date that is on
or prior to the date of redemption will be payable to holders who are holders of
record of such notes as of the close of business on the relevant record date for
such installment. The 2038 Notes will be issued only as Registered Global
Securities, without coupons, held by the Depositary, which will be the
Depository Trust Company, and will not be issued in definitive registered form
except pursuant to Section 2.07 of the Original Indenture.
SECTION 3. Nothing in this Third Supplemental Indenture, expressed or
implied, is intended or shall be construed to confer upon or give to any person
or corporation, other than the parties hereto and the holders of the 2018 Notes
and 2038 Notes any right, remedy or claim under or by reason of this Third
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 New Securities.
SECTION 4. This Third Supplemental Indenture shall form a part of the
Original Indenture for all purposes and every holder of Securities heretofore or
hereafter authenticated and delivered under the Original Indenture shall be
bound hereby; provided that the supplemental definitions provided in Section 1
of this Third Supplemental Indenture shall apply only to the New Securities. The
Original Indenture as supplemented by this Third Supplemental Indenture is
hereby in all respects ratified and confirmed.
SECTION 5. The Trustee, for itself and its successor or successors,
accepts the trust of the Original Indenture as amended by this Third
Supplemental Indenture, and agrees to perform the same, but only upon the terms
and conditions set forth in the Original 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 Company, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Third Supplemental
Indenture other than as to the validity of its execution and delivery by the
Trustee.
SECTION 6. This Third 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 instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date first written
above.
The ServiceMaster Company,
as the Company
By:
Title:
Xxxxxx Trust and Savings Bank,
as Trustee
By:
Title:
Page 3
STATE OF ILLINOIS )
)
COUNTY OF DUPAGE )
BEFORE ME, the undersigned authority, on this ___ day of ________,
1998, personally appeared ______________________, _______________________ of The
ServiceMaster Company, a Delaware corporation (the "Company"), 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 such corporation
for the purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF ___________, 1998.
(SEAL)
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name:
Expires:
STATE OF ILLINOIS )
)
COUNTY OF XXXX )
BEFORE ME, the undersigned authority, on this ___ day of ________,
1998, personally appeared _______________________, _______________________ of
Xxxxxx 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 such trust for
the purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF __________, 1998.
(SEAL)
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name:
Expires:
Page 4
[FORM OF FACE OF NOTE]
Exhibit 1
No. $
The ServiceMaster Company
% Note
Due [ ], 2018
The ServiceMaster Company, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to , or registered assigns, at
the office or agency of the Company in New York, New York, the principal sum of
on , in the coin or currency of the United States, and to pay interest,
semi-annually on
, and of each year, commencing , on said principal sum at said
office or agency, in like coin or currency, at the rate per annum specified in
the title of this Note, from the or the , as the case may be, next preceding the
date of this Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided for,
in which case from the date of this Note, or unless no interest has been paid or
duly provided for on these Notes, in which case from , until payment of said
principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as such address shall appear on the Security
Register or by wire transfer as provided in the Indenture. Notwithstanding the
foregoing, if the date hereof is after the first day of
or , as the case may be, and before the following or , this
Note shall bear interest from such or
; provided, that if the Company shall default in the payment of
interest due on such or , then this Note shall bear interest from the next
preceding or , to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these Notes, from
. The interest so payable on any or will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note is registered at the close of business on
or , as the case may be, next preceding such or , whether or
not such day is a Business Day.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The ServiceMaster Company has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers.
Dated:
THE SERVICEMASTER COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
Page 5
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: Xxxxxx Trust and Savings Bank,
as Trustee
By
Authorized Signatory
REVERSE OF NOTE
The ServiceMaster Company
% Note
Due [ ], 2018
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of August 15, 1997 between the
Company (as successor by merger to each of The ServiceMaster Company Limited
Partnership and ServiceMaster Limited Partnership, and their respective rights
and obligations under the Indenture hereinafter referred to) and Xxxxxx Trust
and Savings Bank, as Trustee (hereinafter called the "Trustee") (as supplemented
by the First Supplemental Indenture dated as of August 15, 1997 among SMCLP,
SMLP and the Trustee, the Second Supplemental Indenture dated as of January 1,
1998 between the Company and the Trustee and the Third Supplemental Indenture
dated as of March 2, 1998 between the Company and the Trustee, the "Indenture"),
to which Indenture and all indentures supplemental thereto and all terms of a
particular series of Securities established pursuant to Section 2.03 of the
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the % Notes Due [ ], 2018 of the Company, limited in aggregate
principal amount to $150,000,000.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this Note. If a payment date is not a Business Day as defined in the
Indenture at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
In case an Event of Default as defined in the Indenture, with respect
to the % Notes [ ], 2018, shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, may be declared, and upon such
declaration shall become, due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
Page 6
The Indenture contains provisions which provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities of all
series affected (all such series voting as one class), and the Holders of a
majority in aggregate principal amount of the outstanding Securities of all
series to be affected (all such series voting as one class) by written notice to
the Trustee may waive future compliance by the Company with any provision of the
Indenture or the Securities of such series; provided that, without the consent
of each Holder of the Securities of each series affected thereby, an amendment
or waiver, including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the principal amount thereof
or the rate of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such Holder,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor; (ii) reduce the percentage in
principal amount of outstanding Securities of the relevant series the consent of
whose Holders is required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in the
payment of principal of or interest on any Security of such Holder; or (iv)
modify any of the provisions of the Indenture governing supplemental indentures
with the consent of Securityholders except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of principal of or interest on any Security or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Page 7
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued in a
periodic offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect to
sections of the Indenture concerning the execution, authentication and terms of
the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and in
the manner and subject to the limitations provided in the Indenture, but,
without the payment of any service charge, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations.
The Notes will be redeemable, at any time prior to maturity at the
option of the Company, in whole or in part, upon not less than 30 or more than
60 days prior written notice, at a redemption price equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
Remaining Scheduled Payments thereon discounted to the redemption date, on a
semi-annual basis, at the Treasury Yield plus [____] basis points, together with
all accrued but unpaid interest, if any, to the date of redemption in either
case; provided, however, that interest installments due on an interest payment
date that is on or prior to the date of redemption will be payable to holders
who are holders of record of such notes as of the close of business on the
relevant record date for such installment.
Page 8
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any notation
of ownership or other writing hereon), for the purpose of receiving payment of,
or on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Company or any successor corporation thereof, either directly or
through the Company or any successor corporation, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the consideration
for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
-----------------------------------------------------------
-----------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Page 9
[FORM OF FACE OF NOTE]
Exhibit 2
No. $
The ServiceMaster Company
% Note
Due [ ], 2038
The ServiceMaster Company, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to , or registered assigns, at
the office or agency of the Company in New York, New York, the principal sum of
on , in the coin or currency of the United States, and to pay interest,
semi-annually on
, and of each year, commencing , on said principal sum at said
office or agency, in like coin or currency, at the rate per annum specified in
the title of this Note, from the or the , as the case may be, next preceding the
date of this Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided for,
in which case from the date of this Note, or unless no interest has been paid or
duly provided for on these Notes, in which case from , until payment of said
principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as such address shall appear on the Security
Register or by wire transfer as provided in the Indenture. Notwithstanding the
foregoing, if the date hereof is after the first day of
or , as the case may be, and before the following or , this
Note shall bear interest from such or
; provided, that if the Company shall default in the payment of
interest due on such or , then this Note shall bear interest from the next
preceding or , to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these Notes, from
. The interest so payable on any or will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note is registered at the close of business on
or , as the case may be, next preceding such or , whether or
not such day is a Business Day.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The ServiceMaster Company has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers.
Dated:
THE SERVICEMASTER COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
Page 10
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: Xxxxxx Trust and Savings Bank,
as Trustee
By
Authorized Signatory
REVERSE OF NOTE
The ServiceMaster Company
% Note
Due [ ], 2038
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of August 15, 1997 between the
Company (as successor by merger to each of The ServiceMaster Company Limited
Partnership and ServiceMaster Limited Partnership, and their respective rights
and obligations under the Indenture hereinafter referred to) and Xxxxxx Trust
and Savings Bank, as Trustee (hereinafter called the "Trustee") (as supplemented
by the First Supplemental Indenture dated as of August 15, 1997 among SMCLP,
SMLP and the Trustee, the Second Supplemental Indenture dated as of January 1,
1998 between the Company and the Trustee and the Third Supplemental Indenture
dated as of March 2, 1998 between the Company and the Trustee, the "Indenture")
to which Indenture and all indentures supplemental thereto and all terms of a
particular series of Securities established pursuant to Section 2.03 of the
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the % Notes Due [ ], 2038 of the Company, limited in aggregate
principal amount to $150,000,000.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this Note. If a payment date is not a Business Day as defined in the
Indenture at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
In case an Event of Default as defined in the Indenture, with respect
to the % Notes Due [ ], 2038, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable in the manner, with the
effect and subject to the conditions provided in the Indenture.
Page 11
The Indenture contains provisions which provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities of all
series affected (all such series voting as one class), and the Holders of a
majority in aggregate principal amount of the outstanding Securities of all
series to be affected (all such series voting as one class) by written notice to
the Trustee may waive future compliance by the Company with any provision of the
Indenture or the Securities of such series; provided that, without the consent
of each Holder of the Securities of each series affected thereby, an amendment
or waiver, including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the principal amount thereof
or the rate of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such Holder,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor; (ii) reduce the percentage in
principal amount of outstanding Securities of the relevant series the consent of
whose Holders is required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in the
payment of principal of or interest on any Security of such Holder; or (iv)
modify any of the provisions of the Indenture governing supplemental indentures
with the consent of Securityholders except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of principal of or interest on any Security or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Page 12
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued in a
periodic offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect to
sections of the Indenture concerning the execution, authentication and terms of
the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and in
the manner and subject to the limitations provided in the Indenture, but,
without the payment of any service charge, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations.
The Notes will be redeemable, at any time prior to maturity at the
option of the Company, in whole or in part, upon not less than 30 or more than
60 days prior written notice, at a redemption price equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
Remaining Scheduled Payments thereon discounted to the redemption date, on a
semi-annual basis, at the Treasury Yield plus [____] basis points, together with
all accrued but unpaid interest, if any, to the date of redemption in either
case; provided, however, that interest installments due on an interest payment
date that is on or prior to the date of redemption will be payable to holders
who are holders of record of such notes as of the close of business on the
relevant record date for such installment.
Page 13
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any notation
of ownership or other writing hereon), for the purpose of receiving payment of,
or on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Company or any successor corporation thereof, either directly or
through the Company or any successor corporation, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the consideration
for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
---------------------------------------------------------------
---------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Page 14
